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What happens to the ownership of a produced show when the partnership that created is dissolved?

Pasadena, CA |

My partner and i created a show. The name of the show is not a registered trademark. the Show is on youtube. The partner has been appearing on cable. The company is to be dissolved. What happens to the ownership of the produced videos? And who if anyone owns the name of the show which is not trademarked?

Attorney Answers 4

Posted

When a partnership dissolves, the assets must be wound up and distributed to the partners. This includes intellectual property belonging to the partnership. The difficult issue in a situation like this is whether copyrights in the produced videos and the trademark (the name does not need to be registered to constitute a trademark) belong to the partnership or to the individual partners as the authors/creators of the video. Ordinarily, in the absence of a written agreement, the authors/creators of a work such as a You Tube Video, and not the partnership, own the copyright. Without a written agreement, each joint copyright owner would be free to exploit the videos an any way that he wanted, but he would have to account to the other copyright owner for their share in any revenues earned from the videos. However, if you and your partner had formed a business partnership, you had fiduciary duties to each other and the partnership, which may have required you to transfer ownership of the copyrights and other intellectual property to the partnership. This, most courts would conclude that the videos and the names are assets of the partnership rather than the individual partners. If so, then in order to dissolve the partnership, these assets must be equitable divided between the partners. Even if the intellectual property rights are deemed to be jointly owned by the two partners, each partner would need to account to the other for the value of any use made of the intellectual property rights and revenues made from such use---for example, if one partner uses the trademarked name, he would probably owe reasonable royalty of licensee fee to the other reflecting half of the fair economic value for use of the name.

In a situation like this, there are two possible resolutions. First, the partners could institute a formal dissolution proceeding in court, and leave it to the court to decide how to divide the assets. This is expensive, time-consuming, and there is no guaranty that either partner will be happy with the outcome. Another possibility---much preferred, is for the partners to negotiate for a fair and equitable dissolution of the partnership an distribution of its assets to the partners. For example, if one partner wants to continue to produce the show, use the name, and use the old videos, he might want to buy-out the rights of the other partner. He could do so by a cash payment, or a promised future share of profits or royalties, or a combination of both. If both partners want to continue to produce a similar show, they might have to agree to account to each other for a reasonable share of the profits that each of them generate. These negotiations can be tricky and complex, and it is often useful for the parties to bring in a neutral third party mediator (usually a lawyer or former judge with grey hair and a reputation for fairness and integrity) to facilitate a negotiated settlement. In short, either a court will clean up this mess in an expensive proceeding that could lead to an unsatisfactory result, or you and your partner can negotiate a solution.

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Bruce E. Burdick

Bruce E. Burdick

Posted

The trademark, here probably a service mark, is an even knottier problem. It would confuse consumers for both former partners to use the same mark for the same services or goods. You and your ex-partner need to negotiate an agreement,or a judge may decide nether of you should keep using the agreement since consumers likely know that mark as belonging to a partnership. My suggestion is Erhart you and your partner hire an impartial mediate and enter into a binding mediation-arbitration called MEDALOA or baseball arbitration where you mediate until you each agree or make a final offer and the mediator or another separate arbitrator chooses one of the offers a the fairest and that is then binding on the parties. The point is to force you to a radio

Bruce E. Burdick

Bruce E. Burdick

Posted

radio-->resolution.

Posted

This should be resolved by agreement prior to the dissolution. Consult with an IP attorney who has some experience in the industry. I can refer you to someone if you wish.

This answer is provided for informational purposes only and does not constitute legal advice. I am licensed to practice law in the State of Delaware and this answer assumes Delaware law applies to the question unless otherwise stated. Unless and until we enter into a formal written engagement agreement, neither Berger Harris, LLC nor any of its attorneys represent you or have any duties toward you. This information is not intended to create, and receipt or review of it does not constitute, a lawyer-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us. In some jurisdictions, this World Wide Web site may be considered advertising. Before making your choice of attorney, you should give this matter careful thought. The selection of a lawyer is an important decision that should not be based solely upon written information about our qualifications and experience. Berger Harris, LLC has endeavored to comply with all known legal and ethical requirements in providing the information found on this website. Berger Harris, LLC does not desire to represent clients based upon their review of any portions of this website that do not comply with legal or ethical requirements in their jurisdictions.

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Bruce E. Burdick

Bruce E. Burdick

Posted

Partnership splits are prime candidates for mediation.

Posted

Under California law, whenever two or more people work together for the purpose of commercial gain and do not have a written agreement they form a statutory, default general partnership. What they create in furtherance of that partnership belongs to the partnership, not to the individual partners. That includes the copyright in the works they create [the copyright passing to the partnership "by operation of law"]. You need to speak with a California-licensed intellectual property attorney to dissolve the partnership by agreement and to divvy up the partnership assets [which, again, includes the copyright in the "show" the two of you created.] Good luck.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

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Posted

Wow, great East Coast and West Coast answers from Maurice and Daniel. For a Mid West take, just a few further comments.
1. Copyrights and trademarks will likely legally be in the partnership if there is no other agreement or special facts. You gave us no special facts that suggest otherwise.
2.When the partnership ends the assets have to be split among the partners.
3. Mediation is usually the best way to accomplish this sort of split of intangible property, and the best form of mediation for this is usually MEDALOA (mediation and last offer arbitration), more commonly known "baseball arbitration". Using this can turn"ugly and bitter" immaturity into cooperative mature resolution.

Absent a mediated solution this split up is going to drag on and be a drag on your energy for years, to say nothing of the cost and needless counterproductive legal battling.

4. Often even a bad settlement is better than years of counterproductive fighting.

Try to find a lawyer that is a dealmaker not a deal breaker. You already have a broken deal. What you need is to make a Deal and move on and put this to rest. It is as true for business partnership splits as marital partnership splits.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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