Insights

Is the payment for writing books after marriage in Ningbo a common property?

Ningbo Author：LuXu WANG

The book is written word by word, but the royalties have to be divided. The first reaction of many creators is unacceptable. The law makes a fine division in this matter: the work is yours, and the money is not necessarily yours.

Qualitative 1. of Intellectual Property Proceeds

the proceeds of intellectual property rights acquired by the husband and wife during the existence of the marriage relationship shall belong to the joint property of the husband and wife. The key word here is income, which points to property interests, not rights themselves. The royalties, royalties and royalties are all listed here. In Ningbo, such disputes are also resolved through divorce property division procedures-according to Yinzhou Court's White Paper on Trial of Marriage and Family Cases (2019-2021), more than 99% of family cases involve property division, and the division objects have been extended to new types of property such as pets, game equipment and virtual currency. Intellectual property gains also belong to the scope of property that needs to be truthfully declared.

Income and rights are viewed separately.

This distinction is the basis for understanding the entire rule. If you confuse the two, you will come to the obvious wrong conclusion that the work should be divided into half.

2. copyright itself is not divided

the right of authorship, the right of modification, and the right to protect the integrity of the work in copyright have personal attributes, belong exclusively to the author, are not shared by marriage, and will not be divided in the event of divorce. The spouse cannot claim the signature or interfere with the modification of the work because of the share of the proceeds.

personal rights exclusive author

even if the creation during the marriage, the signature is always the author's own. This is not affected by any property agreement.

3. achieved and expected returns

gains that have actually been acquired during the marriage are common property; gains that have not yet been actually acquired but are clearly achievable are also tended to be included in practice. Completely uncertain future earnings, generally not as a split object, avoid guessing as property.

Signed up for unpaid usual count.

If the publishing contract has been signed, the amount of remuneration and the time of payment are clear, but the payment has not yet been made, such income is clearly directed and is mostly regarded as divisible.

4. after the divorce to get the fee

if the work is completed during the existence of the marriage relationship and the proceeds are actually obtained after the divorce, it is necessary to make a specific judgment: if the creative labor corresponding to the proceeds occurs in the marriage, and the rights have been determined in the marriage, the other party still has room to claim.

See where the labor takes place.

Sorting out the creation timeline, contract signing time and settlement cycle is the most convincing material in this kind of dispute.

5. conventions can change the rules

the husband and wife may agree on the ownership of the proceeds of intellectual property rights. If the creator wants the proceeds of the work to be personal, the safest way is to sign a written property agreement that clearly lists the scope of the work and the type of income, rather than arguing about the degree of hard work after the fact.

Job works to be judged separately

if the work belongs to the work of office, the ownership of copyright itself is affected by the relationship between the employer and the author. In such cases, the attribution of rights is clarified before discussing whether the proceeds are common property.

How do 6. creators arrange in advance?

For people whose main source of income is creation, the most effective arrangement is to sign a written property agreement before or during marriage, itemize the scope of the work, the type of income and the rules of attribution, and agree on how the new work applies. Only by claiming that the creation is hard after the fact, there is no corresponding evaluation channel in law, and the agreement is the only safe tool.

1. Agreement to cover future works

only existing works are written, and statutory rules are still applicable to new works in the future. In order to form a complete protection, the provisions of this agreement shall also apply to the works created thereafter.

2. Cooperative works depend on the signature structure

for works completed in cooperation with others, the rights and benefits are distributed among the authors according to the cooperation agreement, and the spouse can claim only the corresponding part of the income due to the author. Clarifying the share of cooperation is a pre-step in calculating the divisible amount.

7. case proof

in practice, works published during the marriage relationship, which have paid royalties of about 270000 yuan, are deemed to be common property to participate in the division, and the right of signature still belongs to the author himself.

In practice, in another case, although the work was completed within marriage, about 65% of the proceeds depended on the new adaptation and promotion work after the divorce, which was identified as belonging to the creator.

In practice, the works involved in the case were completed by multiple people in cooperation. The court first determined that the author's share of income was 30%, and then divided the share of about 110000 yuan in marriage.

8. Risk Alert

  • the mistake is to think that the work belongs to oneself and all the proceeds belong to oneself.
  • The uncertain future benefits are claimed together.
  • The timeline for creation and settlement is not organized.
  • Confusing the attribution of the right of signature and the property proceeds.
  • Hope that the proceeds go to the individual but do not sign a written agreement.

9. FAQ

do you want to share the payment for writing books after marriage?

Intellectual property gains acquired during the marriage are common property and usually need to be divided.

Will the copyright be separated?

It won't. Personal rights such as the right of authorship are exclusive to the author and are not shared by marriage.

What about the royalties received after the divorce?

Depending on the point at which creative labor and rights are determined, the other party identified within the marriage still has room to claim.

Can you agree to own it?

You can. It is sufficient to sign a written property agreement to clarify the scope of the work and the attribution of the proceeds.

Do job works also have to share income?

It is necessary to clarify the ownership of copyright before determining whether the corresponding proceeds are common property.

How can creators be protected in advance?

A written property agreement is signed, setting out the scope of the work and the attribution of proceeds, and covering future new works.

Practical Experience of 10. Lawyers

the book is written by oneself line by line, but the manuscript fee may not all belong to oneself. What the law does here is a division: the work is yours, and the income is not necessarily all yours. The personal rights of the author in the copyright are not affected by marriage, and no one can take away the signature or modification of these; and the manuscript fees, royalties, and license fees that have been received during the existence of the marriage relationship belong to property income and fall within the common property of the husband and wife. Within the scope. The first reaction of the parties is often what I stay up late to write. The emotions are understandable, but at the level of rules, money and rights need to be distinguished.

The key point of judgment is whether the gains have been made. If the money has been paid, there is no dispute. If the contract has been signed, the amount of remuneration and the time of payment have been stated, but the payment has not yet been made, it is also inclined to be included in the scope of division in practice. As for the part that only has a creative plan and is unknown to anyone who is willing to publish it, it is usually not divided as real property. Therefore, when one party advocates division, the most powerful material is the publication contract and payment record, rather than saying in general that he has been writing a book. The creator's side should pay attention not to talk about the future income that has not yet been determined as the debt already owed.

As for the arrangement, the creator can clearly state the ownership of the rights of the work and the subsequent income through written agreement before or during marriage, and leave the uncertain part to himself. This is a common and effective practice in practice. If one spouse wants to argue that it is appropriate to negotiate a discount on the part of the income that has already been determined, so as to prevent the other party from dragging the account into an uncertain future. As for the payment of contributions that come to the account one after another after divorce, it depends on when the creative work and rights are determined. Only those who can be right can be argued, and those who are not right can not be counted in.