A recurring source of confusion in estate planning and administration is the assumption that ownership of a physical object necessarily includes ownership of the associated intellectual property. It does not.
Intellectual property consists of legally recognized rights in intangible creations of the human mind. Those rights are separate from, and may exist independently of, any physical object in which the creation is embodied.
The Source of the Confusion
Many intellectual works are encountered in physical form. Books, paintings, photographs, recordings, and branded products are tangible items that can be owned, possessed, and transferred. Because the intellectual creation is embodied in a physical object, it is easy to assume that ownership of the object includes ownership of the underlying rights.
That assumption is incorrect as a matter of law.
A painting, for example, is tangible personal property. The copyright in the image depicted in the painting is a separate and distinct asset.
Why the Distinction Matters in Estates
In estate planning and administration, this distinction has practical consequences:
A decedent may own physical items without owning the associated intellectual property rights.
Intellectual property rights may exist even when no physical object remains in the estate.
Different rules govern the transfer, preservation, and enforcement of intellectual property rights than govern tangible personal property.
Failing to separate these concepts can result in incomplete asset identification and incorrect assumptions about what is being transferred at death.
A Foundational Principle
For estate law purposes, intellectual property should be analyzed as a distinct category of intangible personal property. Physical objects may evidence, embody, or relate to intellectual property, but they are not the rights themselves.
Subsequent posts in this series build on this principle when addressing ownership, transfers during life, and transfers at death.
Leave a Comment