Do You Need an IP Prenup to Protect Ideas?

Prenuptial agreements can cover a lot of ground, most of which is concerned with the assignment of rights to financial assets and physical property. But what about your intellectual property? Does your ex have rights to the good ideas you came up with before or during the marriage? Or can you set aside those ideas as yours and yours alone in the case of a divorce?

You can easily protect your intellectual property with copyrights, patent, and trademarks — can you also protect it with a prenup?

Human Capital

As divorce attorney Alton Abramowitz described in the New York Times, the price of not carving out IP protections in a prenup can be high:

More than a decade ago, I represented a Nobel Prize winner who may have been the most prolific author of writings in his discipline. His spouse argued that she should share in the value of the copyrights for works he published during their marriage. He argued, however, that those works were an extension of his premarital separate property because a major component of each work was based on thinking and research that he had done well before the marriage — not to mention, over a lifetime spent in his chosen field of expertise … he proceeded down the aisle without a prenup and spent tens of thousands of dollars on a divorce. It was resolved by a settlement that required him to share a portion of his royalties with her for many years to come.

According to Abramovitz, a valid prenup "could have carved out the monetary value of his copyrighted materials and protected that value from the claims of his bride."

Human Investment

Law professor Orly Lobel looks at it from the other side, wondering if a spouse who sacrifices for the other's career will have little or nothing to show for it after a divorce:

[W]e should not forget that, without a spouse willing to take dead-end low-risk jobs, many new companies never get founded. And if a spouse signs away his or her post-martial rights to a start-up's intellectual property, that altruism could mean a life of unrewarding work and little upward mobility.

Like all prenups, a contract concerning marital and separate intellectual property, signed before the marriage even happens, is intended to protect one party at the expense of the other. And both sides should take the prenup seriously. For those who consider their artistic and commercial output as the sole product of their own skill and effort, a prenup can protect those ideas from a non-contributing ex. And for those sacrificing their own careers for a spouse's big ideas should be wary about signing away rights to those ideas.

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