Is Intellectual Property Divisible at Divorce?


What Is Intellectual Property?

If you ever had a burst of artistic genius, a clever idea for a business brand, or a brilliant stroke of innovation, you may have been reluctant to share it with anyone for fear that they would “steal” your idea. Unlike tangible property, ideas cannot be possessed at the exclusion of others.

However, if your idea can be expressed in a certain way, that expression may be protected under intellectual property law. Generally, intellectual property rights are governed by federal law. The purpose of intellectual property is to grant authors, designers, and inventors limited exclusive rights to their creative works, trademarks, and inventions.

This gives creators a temporary monopoly regarding the marketability of their creations as an incentive for them to invest time and energy into their products without the fear that another person can steal their ideas with impunity.

Generally, intellectual property rights consist of copyrights, trademarks, and patents. However, intellectual property protection generally expires, allowing others to benefit from the inventive creations of authors. Are intellectual property rights subject to property division upon divorce?

What Is Copyright?

Copyright grants the creator of an original work of authorship that is fixed in a tangible medium of expression—such as a written story, drawing, or even computer code—certain exclusive rights to their work for a limited time.

Rights to original works protected by copyright include:

  • Performance rights
  • Reproduction rights
  • Broadcasting rights
  • Translation rights
  • Adaptation rights

Copyright protection arises as soon as the author fixes their work in a tangible medium of expression. As a result, registration of the work with the U.S. Patent and Trademark Office (USPTO) is not required to receive copyright protection for original works. However, registration does allow authors to obtain statutory damages for infringement.

What Are Trademarks?

Trademark protects terms and phrases—such as brand names, slogans, and logos—used to identify the source of goods marketed to the public. Like copyright, trademarks do not require registration for protection. To enjoy trademark protection, a person need only be the first to use a mark in association with the sale of their goods. However, registration affords trademark owners the right to receive statutory dames.

What Is a Patent?

Intellectual property law affords patent owners the exclusive right to the user of their new and useful designs, innovative processes, and new species of plants used in agriculture. Legal protection for patents covers industrial designs and processes, biological inventions, business methods, chemical formulas, and computer software. Unlike copyrights and trademarks, rights associated with a patent arise when the USPTO grants the inventor a patent certificate.

Dividing Community Property in California

In California, the community estate of a married couple is equally divided between divorcing spouses. The community estate consists of all community and quasi-community property. All property that the couple acquired during their marriage qualifies as community property. Property acquired or located outside California is considered to be quasi-community property if it would qualify as community property had the couple acquired it while residing in the state.

Generally, courts focus on the date an asset was acquired to determine whether it qualifies as divisible community property upon divorce.

When it comes to intellectual property, the date that the copyright holder acquired exclusive rights to their creations determines whether it will be treated as divisible community property.

For copyright, if an original work of authorship was fixed into a tangible medium of expression when the author was married, the copyright will be divided as community property upon divorce. A trademark is community property if the mark was first used to distinguish the source of goods in the marketplace during the owner’s marriage. For patent, if most of the inventor’s efforts to acquire patent protection occurred during their marriage, the patent is divisible as community property.

Generally, community intellectual property gives both spouses equal rights to the income produced from their protected works. As a result, they must split any royalties, licensing fees, and damages from infringement suits equally between themselves.

Consult the Law Offices of Jeffrey S. Graff for Quality Legal Representation

Issues stemming from California’s rules on dividing community property in a divorce case can be challenging to navigate without the advice of an experienced attorney. If you are facing a legal dispute regarding the division of property upon divorce, you should reach out to the Law Offices of Jeffrey S. Graff. You can rely on my experience with California family law to guide you through challenging legal concepts, such as those related to California community property.

To schedule a free consultation about your divorce, please call the Law Offices of Jeffrey S. Graff at (805) 633-4999 or complete this consultation request form online today.

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