How Do I Protect Intellectual Property Rights When Married in a Community Property State?
A copyright is a type of intellectual property that protects the authors of such things as books, magazine articles, plays, movies, songs, dances, and photographs. Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or
phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm.
Copyright protection begins from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created
the work. Only the author or those deriving their rights through the author can rightfully claim copyright. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration. Among these advantages are the following:
• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publication of the work or prior to an infringement of the work,
statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
Registration may be made at any time within the life of
In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
"1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answer material for a test
• an atlas
If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical
or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
Please see the registration information at the following links:
A postmarital agreement is normally used in situations where one or both parties: has significant wealth or expects to receive a large inheritance, has a personal business, wish to keep all assets and debts separate, were previously married, and/or have children from a previous relationship. Generally, inheritances and property owned before marriage are separate property, but separate property may be claimed as marital property in certain cases, such as when it has been commingled with marital property or the other spouse contributes to separate property.
It can be used to accomplish many legal and financial objectives, but in general couples use it to protect separate property (a family business, for instance), support an estate plan, define what is marital or community property, reduce conflicts and save money in the event of divorce, and establish procedures for deciding future events.
There are three main issues that are typically addressed by a court if the agreement is challenged:
a. Was the agreement entered into voluntarily;
b. Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
c. Was there full disclosure of all assets, liabilities and income?
If these three items can be proven, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was "unconscionable" at the time of enforcement, which shall be determined by the court as a matter of law.
A postnuptial agreement may be declared invalid under the following circumstances:
a. Unconscionability. A postmarital agreement must be fair and reasonable. A postmarital agreement can't cause financial hardship to the other party. Unconscionable contracts are often found to be invalid in the courts.
b. Both parties didn't have independent counsel. Each party must have his or her own lawyer. Many people mistakenly believe that they can have one lawyer represent both of them. However, each party must have his or her own legal counsel. A lawyer must make it clear to the unrepresented party that he or she does not represent him/her, and further advise them to obtain their own lawyer.
If a party needs to have the document translated due to language barriers and is prevented from doing so, this may lead to a challenge based on a lack of understanding and/or duress that prevented a fairly and knowingly made agreement.
c. The agreement has incomplete information. There must be full disclosure when negotiating a postmarital agreement. Quite often a person will try to hide some assets when he or she negotiates. If a person does not make full disclosure during the negotiation of a postmarital agreement, there can eventually be strong grounds to void the agreement.
d. The agreement has false information. A postmarital agreement can't be based on false and misleading financial information. A person must make full disclosure during the negotiations.
e. Invalid provisions. A postmarital agreement can't limit child support or any other child support-related areas. If a postmarital agreement contains clauses that try to limit child support or child support-related areas, then that specific clause will be invalidated. In most cases, the court will only strike the illegal clause, and enforce the remainder of the postmarital agreement, provided that it is fair and equitable.
f. Reasonable time for consideration. These agreements must be thoroughly reviewed and considered.
g. Undue pressure. Postmarital agreements are often challenged once the parties get divorced. One of the most popular challenges to a postmarital agreement is an allegation that a person was pressured by his or her spouse, the lawyer, or the in-laws to sign the postmarital agreement. Some attorneys suggest that the signing of the agreement be videotaped.
h. No written agreement. All postmarital agreements must be in writing. An oral postmarital agreement is not enforceable.
The following are the essential requirements that must be satisfied in order for a postmarital agreement to be upheld:
a. There must be full and fair disclosure of the earnings, property, and financial obligations of the parties. A complete and comprehensive financial statement must be attached to the agreement that sets forth the parties' earnings, property, and financial obligations. A CIS should also be attached to the agreement.
b. Both parties should be represented by attorneys. A postmarital agreement will likely not be enforceable if the other party did not consult with an attorney, or did not waive the right to do so in writing.
c. The agreement must not be unconscionable. An unconscionable postmarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it.These situations are as follows:
(i) When a spouse is rendered without a means of reasonable support.
(ii) a spouse becomes a public charge
(iii) When a spouse is provided a standard of living far below that which was enjoyed before the marriage.
It is critically important that all parties have adequate time to review and sign a postmarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. While six to eight weeks is ideal, this does not mean to suggest that an attorney cannot successfully complete a postmarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it may be stated in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time, and feel that the time frame did not in any way affect their ability to freely and voluntarily enter into the agreement or cause them to do so under any coercion, duress, or undue pressure.