Estate Planning for Intellectual Property (with Celebrity Examples)

August 10, 2010

When a person writes a novel, composes music or creates a painting, not only does she become the owner of the work, but she also holds the potentially valuable “intellectual property” rights to exclusively profit from her efforts.  Such rights are protected by federal copyright and trademark laws (just as inventions are protected by patent law), and in many cases survive the producer.  Various estate planning techniques should also be used to protect future owners of these rights.

To illustrate, let’s look at three current situations involving the intellectual property of Jerry Garcia, Jimi Hendrix and Franz Kafka.  I found reference to these intriguing cases at Texas Tech Law Professor Gerry Breyer’s Wills, Trusts & Estates Prof Blog, which is deservedly a popular and highly-rated site amongst attorneys (and others too).

Garcia — It was recently reported that Grateful Dead Productions and Garcia’s Family LLC will not allow their music to be used in an upcoming biopic based on Garcia’s life, which ended too soon in 1995.  The two entities have long owned and protected the music’s copyrights, and the Family LLC strategy has presumably kept these interests intact in his family.  Proper planning has created a position of strength from which the Garcia family could easily make their decision.

Hendrix – In 2006, a London newspaper gave away over a million free copies of a CD containing recordings from a live Hendrix Experience concert that was previously unreleased.  The Last Experience, Inc., copyright owner of the concert recordings, and Experience Hendrix, the Hendrix family Limited Liability Company (hereinafter “LLC”), sued and recently won a judgment against the paper for over $250,000.

Instructive here is that as opposed to Garcia’s planning, Hendrix died without leaving a will.  The case is merely the latest in a long string of litigation regarding his estate and the rights associated from his music since his death.  After many years of in-fighting, his family eventually made millions of dollars through creating several companies and numerous trademarks using his likeness.  But further planning and implementation, perhaps during his rise to fame, could have saved his family a great deal of strife.

Kafka – An even more drastic example of insufficient planning involves ten safety deposit boxes full of unpublished Franz Kafka essays.  Ownership of these works is still in dispute more than 85 years after his death, even though Kafka left a will instructing his publisher friend to destroy them.  Instead, his friend, and later his friend’s secretary, gradually published and sold off most of the works until the secretary’s death three years ago.  Her two daughters are currently in litigation with the Israeli National Library to determine the fate of the unsold essays.

It is certainly arguable that the publisher’s decision to keep Kafka’s works has had a broad and positive impact on Western literature.  However, either his lack of proper guidance in his will or the publisher disobeying Kafka’s testamentary wishes has created an extreme and seemingly unending circumstance that appears to have been avoidable.

Conclusion — If you have created a work of art or a useful invention that may have future value, let the Garcia, Hendrix and Kafka examples illustrate the importance of creating a plan to protect your loved ones and your innovative works.

 Estate Planning for Intellectual Property (with Celebrity Examples)

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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2 Responses to Estate Planning for Intellectual Property (with Celebrity Examples)

  1. Christie
    August 13, 2010 at 10:47 am

    Garcia, the man with the plan! I love it!

    Can the protection of one’s intellectual property extend overseas? If I write a song that becomes a huge hit in Europe, how do I makes sure the my heirs continue to receive royalties? Will an EP publisher/producer recognize/honor the sucession of intellectual rights here in the US?

    • Scott
      August 16, 2010 at 12:07 pm

      Christie–

      I’m no expert on intellectual property law in terms of the protections of copyright. As I understand it, there is no song that can be granted automatic protection in every country in the world. However, assuming your song was created in the United States, several international treaties exist that would protect it in most other countries. For instance, under the Berne Convention, all member countries must treat songs copyrighted in another member country under their own copyright laws.

      See the following link to a U.S. Copyright office document that shows our copyright relations with other countries around the world: http://www.copyright.gov/circs/circ38a.pdf

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