The Broadway musical, Music Man, has a wonderful song called, “The Wells Fargo Wagon,” written at a time (1957) when Wells Fargo was noted less for its banking irregularities and more for its express shipping services. That song, and indeed the entire musical, is an example of intellectual property. In Virginia divorces, intellectual property must be protected just as vigorously as real estate, bank accounts, and retirement accounts.
Intellectual Property: Your Ideas Have Value
Ideas have value. That is the heart of the concept behind intellectual property. Original book and lyrics for a Broadway show are intellectual property. Other examples, besides plays and musicals:
- Trademarks — Trademarks and service marks are words, symbols, sounds, shapes, animals, characters and even colors that denote a particular brand or company; these result in those little ™, ℠, and ® marks you see next to names
- Copyrights — These include software, original artistic expressions (including Hallmark cards, for instance), writing, architectural designs, and databases; these result in the little © (for copyright) and ℗ (for sound copyright) marks on products
- Patents — Plant varieties, inventions, ornamental designs, and processes can all be patented, which theoretically prevents others from copying your original idea (though you may have to defend your patent in court)
- Trade Secrets — Chemical formulas, search engine algorithms, recipes, manufacturing processes, “11 secret herbs and spices,” and so forth
Protecting Your Intellectual Property
Especially because software and video piracy is a common problem with some of America’s trading partners (and this periodically leads to threats of trade wars and sanctions), intellectual property is valuable enough that laws exist to protect it.
For trademarks and patents, the United States Patent and Trademark Office (USPTO) is the only federal agency authorized to offer legal protection to your idea. With a national patent or trademark, you can defend against national and international attempts to co-opt your idea.
You can also register with a state. In Virginia, you can apply under the Virginia Trade Mark and Service Mark Act, but that only protects you in the Commonwealth. Every state offers an equivalent service, but most inventors and companies go for national protection.
Copyrights are issued by the United States Copyright Office, but you automatically have some limited rights as soon as you create the original expression. Copyrights usually result in royalty payments, such as performance payments, book royalties, or franchise payments.
Trade secrets are protected by (perhaps obviously) keeping them secret. This is why the formula for Coca-Cola (a registered trademark, with protection for the curly-cue script AND the red color!) is supposedly held by only two people.
Trade secrets and their protection often form the plot to many an action movie, but in truth industrial espionage really does occur and can cause huge expenses and headaches. For example, a Foxconn employee, says LinkedIn, received only $3,000 for stealing information and images for a casing design of a new iPad, when the trade secret had a value of roughly $300,000.
Divorce and Intellectual Property
Whether you hold a patent, trademark, service mark, copyright or trade secret, you have something of value, as described by the Virginia Bar Association. In divorce, your attorney will help you figure out if your intellectual property is separate, marital or hybrid property:
- Separate — You came up with the secret recipe for Virginia Fried Okra before you married your wife, so your profits and franchise payments are yours alone
- Marital — You patented your ear hair braiding kit (eww) while married to your wife; she gets half of all the profits (?) from your product (“Makes a Great Gift!)
- Hybrid — You held a copyright before marrying your wife, but the two of you have used book royalties to pay for a vacation home together
When your divorce attorney starts asking about your assets, do not overlook anything that has value or could potentially have value. Royalty checks from your 1960s holiday hit single, “A Quarter Inch of Snow For Christmas” (hey, it’s Virginia) may only amount to $10 a year, but it is still your intellectual property.
Just as important as claiming the original intellectual property rights is preserving all records connected to them. During the divorce process, expect your wife’s attorney to dispute the status of any intellectual property you are claiming as yours alone.
If her lawyer can show that she materially influenced your creation, she is entitled to a share of the profits and future assets. So calendars, journals, computer files, lab notes and all documents become important to your case.
An inconsequential scribble in an inventor’s notebook could protect your claim, if a path from kernel of the idea to final patent is proven to have started before you met your wife.
Using your patented cell phone to call 757-383-9184 will connect you with the experienced family law attorneys of The Firm For Men. Our lawyers know Virginia divorce law, property division, and the details of financial planning for divorce. Whether you are writing the next New York Times Best Seller or inventing a pet-sitting drone, we can help protect your rights as a Virginia man. Contact us online or call today.
