No tangible assets. None. How can we protect intellectual property.

Before you can put anything into a trust you need to identify with specificity what it is that you're putting in there. A vague transfer of "all intellectual property rights" into a trust is meaningless and, worse, provides a false sense of security that something of legal value actually occurred.

Taking a step back, however, you should understand that a trust may not be the tool you need because copyrights pass automatically to the copyright owner's heirs upon his or her death according to the applicable state's intestate succession laws. In short, our brother's children likely already own (as tenants in common) the copyrights in their father's songs.

Your first step is to make a pile of all the hard copy things (papers, videos, and audiotapes) that have been created to memorialize your brother's songs (the lyrics and musical arrangement) and his recordings of those songs (his jam sessions and/or studio sessions).

Once done, it's best if you, one of your brother's children, or a friend take on the task of making sense of the pile. The chore could be a labor of love. Reading a few books on musical copyrights would be of great benefit (query amazon.com for "music copyright.").

Once you've made the pile, you need to create a list of the songs and then write down their lyrics and, if possible, their musical arrangement (note that lyrics are simply poems if there's no musical score). That will be his song portfolio.

You should then register the copyright in these "musical compositions" -- which should only be done by a copyright lawyer because there will be tricky issues about who has the right to register them (likely the executor of your brother's estate), whether they were published or not, if published whether they were first published in Mexico and how that affects the copyright, what specimens are sufficient to comply with the registration requirements, etc. Unfortunately, registering the copyright in a musical composition can be very confusing. See http://www.copyright.gov/circs/circ50.pdf Once registered, it would be wise to file with the Copyright Office some notice that your brother's children now own the copyright via transfer through intestate succession.

As for the video and audiotapes of his performances, you need to decide if they have any value apart from the underlying song. In short, would anyone buy them? Note that these recordings are valuable to the extent that they memorialize the musical score of the musical composition -- so even if no one will buy them you save them in any event.

All of this is very time consuming and will be expensive. There are, however, no shortcuts.

Good luck.

The best way to protect these assets is to consolidate them into either a trust or other entity which would hold and manage those assets for the benefit of the two children. Also, as part of that management, would be the continual control and monitor of the usage of these intellectual properties. You will definately need a lawyer for this as the entities will need to be made under the review of the probate court as these are intestate benefits.

If you would like to discuss this further, please feel free to email me at andrew@stilwellassociates.net.

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