Can Children Own IP? (Robert Taylor)
Wednesday, November 15, 2017
There is nothing to prevent a child owning intellectual property. For coders (who used to be called computer programmers) copyright law is the most relevant, although you should consider patenting if your child has invented something and trade marks to protect your brand.
Copyright arises on creation of an original work (computer code is considered to be a literary work for these purposes) and is held by the creator for the term of their life plus 70 years. In the UK, there is no requirement to register copyright. Copyright is assignable or licensable by contract – however, when children creations are involved, we get into the problem of contractual capacity.
The general rule is that minors (under 18 in the UK) do not have contractual capacity, therefore a contract made with a minor is voidable at the minor’s option while they are under 18 or until a reasonable time afterwards. However the exception to this are Service Contracts, many of the contracts which a minor may get into would be considered service contracts for the benefit of the minor and these are not generally voidable - Chaplin v Leslie Frewin (Publishing) Ltd  Ch 71 – in this case the minor son of Charlie Chaplin signed a contract with a publisher for an autobiography to be ghost written by two journalists when the book entitled “I Couldn’t Smoke Grass on my Father’s Lawn” was finished Chaplin junior was embarrassed by the content and tried to stop publication. One of the things he argued was that he lacked contractual capacity to make the contract. However, the judges rejected this. In practice this means that children are dealt with in the same way as adults. However, the business reality is that anyone interested in buying the rights to your child’s brilliant app or music will expect contractual certainty and will demand parents act as guarantors if they are not directly involved in the business themselves.
My advice would be to check the terms of any guarantee very carefully so you know what you are getting yourself and your family into.
Robert Taylor has 30 years' experience in the entertainment industry. His practice encompasses media, IP and entertainment contract drafting and negotiating – ranging from creative, talent and production contracts in TV, film and theatre to investment and project structuring work.