They say, “the carpenter’s roof always needs work.” As attorneys, we may be as guilty of this self-neglect as any other professional.
We invest much energy, time, and resources in making sure that our clients are well taken care of when it comes to advising them about their assets, e.g., we tell them to ask all the right questions before they purchase certain property, ensure proper registration or title to that property, have a will prepared, a contract drafted or a trust formed so that (1) they make an inventory of their assets, and (2) plan what happens to their assets during life and after death. When it comes to our own roof, however, we are too busy fixing everyone else’s house.
Things have changed. The type of assets we have, as attorneys, have become more digital, especially when it comes to our practice of law: we have websites, invest thousands of dollars into “keywords” for advertising our services, pay for domain names; write, edit and post blog entries sharing our knowledge, experience and expertise, and seek expensive but creative special digital properties in order to differentiate our law practice from our competition.
Perhaps it is our busy lives that prevent us from asking some important questions for ourselves: (1) What is a digital asset, (2) I pay for them; but, who owns my digital assets? (3) Are there limitations to what I can own, and (4) Am I considering my digital assets in my planning for life and death?
What is a digital asset?
Although a final legal definition may not yet exist, a digital asset is an intangible property or a record that is electronic in nature. Examples of digital asset include images, photos, videos, text files that are stored either online or locally and can be assets offered as part of a service by a third party through a contract. Your firm’s website, email accounts, online photos, Social Media Accounts, and blog posts are all examples of your digital assets.
Who Owns Your Digital Assets
You paid for your domain name; but, do you own it?
We, at Consultwebs, make sure to do all that is necessary so that you or your law firm is the registered and proper owner of your domain name, content, and all the tools necessary for you to have direct access and measure the success of your online marketing investment, such as Google Analytics.
However, some online marketing companies register your domain in their own name although you pay for the domain name as well as their services. The easiest way to find out whether or not you own your domain is to check the following website:
Enter your domain name into the search box and go through the listed information: whoever is listed as “Registrant” or “Administrative Contact” owns your domain. If your domain is listed under any name other than yours or your law firm’s, request for the name to be changed to reflect that you are the owner of your domain.
Other than your firm’s domain name, you may have invested in potentially lucrative domain names for investment purposes. For example, if you had thought to buy insurance.com or apple.com when the online world was just beginning to unravel; today, you would be quite wealthy just from the sale of such domain name. If you invest in domain names, do you have a plan for the domain name to be a part of your will or trust one day? If so, have you checked the terms of service to make sure that the purchase and ownership of that domain name survives your death?
You invest in your website. Do you own your website and the content on it?
Any attorney who has invested in a website full of valuable content knows how costly it can be. If your content is written by licensed attorneys (like we do at Consultwebs), optimized and effective, it can be worth a lot of money. Whether you keep your website and content or decide to deactivate it at some point, it is important to know who owns it. Review your contract with your online marketing company to make sure that you have all the rights associated with your website and content. If the contract is silent, ask for a provision to state that upon full payment for the content on your website, the ownership is yours.
Also, keeping your content copyrighted will assist you and your firm in the most unexpected ways. For example, if you decide to forego your domain name at some point (for reasons, e.g., you changed the name of your firm or found a better domain name for it), the former domain name may become available for someone else to purchase and the change of hands for that domain name may lead to the theft of your content even if you removed the content before foregoing the domain name.
Questionable online practices include scraping your content from an archive, purchasing and registering your former domain name, and publishing your former content without your permission. If you own the content, you may be able to rely on the Digital Millennium Copyright Act (”DMCA”) to request immediate removal of your content from the infringing website. Even if the owner of the website refuses to remove the content; most of the time, the hosting company will take quick action upon your request to avoid liability. [If you need to see a sample request for removal of copyrighted content, feel free to ask us for a copy at www.consultwebs.com].
Who in your firm owns the digital assets? If your firm owns the domain name, website and the content, is it addressed in the partnership agreement?
Let’s face it: top quality content and other digital marketing assets can be very effective in bringing more clients to your firm, creating a brand awareness, and leaving your competition with very little to go after. Similar to all effective, top quality marketing methods, it can also be an expensive investment.
For example, recently, Consultwebs designed and produced a special digital property for one of our clients. This digital property is part of the law firm’s website and is able to calculate blood alcohol levels of each beverage based on the information input by the user. It is one of a kind and no other law firm has anything even slightly comparable to this online tool. As an effective and unique online tool, this asset catches a lot of attention, brings more traffic to the website, and provides a valuable instrument to potential law firm clients. Similar to this asset, your firm may be investing in additional online properties for your website to provide value to your prospective clients.
At the end of the day, the cost of your domain, website, content, special digital properties and online visibility can be worth considering who, inside your firm, owns all of these digital assets. If a partner leaves, how is her share calculated based on her contributions to the value of the digital assets? Does your partnership agreement cover the issues that may stem from profits and liabilities associated with your digital assets?
These are mere suggestions as to the type of questions we, the attorneys, may want to ask ourselves and our vendors in protection of our digital assets. Keep in mind, however, even when you invest in certain digital assets, it may not always be possible for you or your firm to own such assets. Terms and agreements of the service providers, discussed below, is a good example.
Service Provider Terms and Agreements
Ownership of our digital assets may not always be possible. For example, when signing up for an account with Facebook, we may be giving up our ownership to the content we place on our accounts including photos, articles, opinions, or videos. Upon an individual’s death, Facebook allows the accounts to be memorialized, i.e., the account becomes inaccessible but the content remains available for the account holder’s friends. Although a “legacy user” may be appointed, the power of the legacy user does not extend much beyond approving friend requests and posting memories.
Another useful example may be a Gmail account ownership. Although you may have an ownership interest in your email account during your life time, as long as you have the password to access your account, and may choose to share your password with family and friends, Gmail has a clear policy to delete email accounts after a certain period of inactivity. If you do not choose to share your password with anyone, and if someone shows interest and authorization in order to access your email account after your death, a more complicated process is outlined by Google. After this lengthy process, your family member or authorized representative may or may not be able to gain access to your email and all the digital assets your email may contain.
Keep in mind that although an email account or a Facebook communication in general sounds like a simple, negligible communication or marketing tool, it may contain digital assets, valuable information, and electronic communications creating legally binding results, such as a trust. In many states, a physical instrument is not required for the creation of a trust, if properly authenticated and if the digital communication is found to be admissible to prove by clear and convincing evidence that the terms defined the deceased’s intent to create a trust. See KRS 386B. It would not be surprising if an email or social media communication is found to be sufficient to create a trust. As such, the ownership of these communications and other digital assets are almost always relevant and their planning is just as important as tangible property.
Estate Planning for Digital Assets for Attorneys
Although the idea is evolving, protection of your digital assets during life and after death is just as important as the protection of your tangible property. This blog post is a kind reminder that, as attorneys, we must tend to our own roofs, even when it is made of wires and digits in 1s and 0s. Even if you have taken all the actions to make sure that you own your digital assets, planning for those assets can be just as important.
- Do you have a Power of Attorney? Do you have a Durable Power of Attorney? Does each provide access to your digital assets that may include information that is vital for your health, safety and management of your assets?
- Do you have a will? (May be surprising to learn how many of us don’t)
- Does your will cover your digital assets?
- Have you informed your family or an authorized representative of a legally binding instrument contained in a digital asset?
- Will your family have access to your digital assets after your death?
- What ownership interest have you included in your estate planning for your partners or family? Will your family have a say in your digital assets?
- Will your interest in your firm’s digital assets pass on to your partners or become part of your personal estate? If your share in your firm’s digital assets become part of your personal estate, how will this affect the law practice?
Now that this blog has you thinking about it, perhaps it is time to ask more questions and plan effectively considering your digital assets.
As you ask those questions, please share those questions with us on the comments below. And, don’t trust a marketing company that cannot give you the ownership of what you pay for. Just because you let the roof leak doesn’t mean you gave up on your house.