I have a question. I am an artist/illustrator and when getting married I formed a 50/50 profit partnership LLC for tax purposes with my husband. I drew/ painted and he was suppose to help sell my drawings ,but I did most of the work selling,too. We separated and are now divorcing. I want to dissolve my partnership with him, but since I have been very successful he now sees it as an asset!
Who owns the copyright of my paintings I made during my partnership?
Do I as the artist, or are they shared by my business partner alias my husband? What can I do to protect my intellectual/artist rights?
Thank you very much for your responses, The LLC doesnt have any partnership agreement nor operating agreement. I certainly never intended to assign my IP to the LLC .As well he wants to claim that all my art equipment is part of the LLC, but I had most of it before the LLC formation and I didnt "officilly " assign it or agree to that either.Is there a way I can characterize my relationship to the LLC now in this divorce that would help protect me? Now I fear too that he will not want to dissolve the LLC and will try to claim interest in potential asset/sales? Thank You.
Community property claims are very common with LLCs, so proper LLC Operating Agreements address this and have spousal disclaimers.
Did you register your illustrations for copyrights, and if so, did you do it in your name individually? Ihe LLC's name? Even if you didn't register the copyrights, if your LLC Operating Agreement doesn't have a spousal disclaimer, or the LLC doesn't even have a written agreement, then your spouse will claim that you individually assigned your IP to the LLC (or should have) and that he owns a 50% share in the LLC.
See a family lawyer for help with this.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
Intellectual Property Law Attorney
You need to speak with a business attorney licensed to practice in Arizona.
People with an ownership interest in an limited liability company are "members" of the LLC. If one or more of those members want to dissolve the company [in this case, you] he or she can but, in the process, must lawfully divide the assets of the company among all the members. Absent an agreement to the contrary, the division must be equal.
It sounds as if you were an employee of the LLC when you created your copyrightable works -- if so, the company owns the copyright in those works.
If you were not an employee you could have been an independent contractor with an obligation to assign [i.e., transfer your ownership right in] your copyright to the LLC.
Even another alternative is that you could have been an independent contractor with no obligation to assign but by your conduct you gave the LLC an irrevocable license to make use of the copyrights.
There are even other possibilities.
In short, you need to have a discussion with your own Arizona-licensed attorney who will need to characterize your relationship with the LLC. That decision will drive the conclusion as to who can control the copyrights in the works you created.
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Intellectual Property Law Attorney
It really depends what the Operating Agreement for the LLC says -- likely it says that you are contributing your art in exchange for an ownership interest in the LLC. Thus, your art is owned by the LLC, which retains all intangible rights in your work unless there was a carve-out in the agreement. If the agreement is silent as to who owns the remaining unsold paintings and reproduction rights in the event of a dissolution or your withdrawal from the LLC, then you'll have to fight about intent with your husband during the divorce proceedings. Unless you're agreement specifically addresses IP concerns and includes the what-if scenarios that no one likes to think about when going into a partnership (especially with a spouse), then the probable scenario is that the LLC owns the rights to work you created and sold via the LLC. Your divorce attorney should definitely consult with an IP attorney.