EXAMPLE: Emily and Robert are married
divorce. Every state has a set of laws
and live in California. Emily writes a novel.
about how property acquired or created
Unless they agree otherwise, Robert
by married persons is owned and divided
automatical y acquires an undivided one-
upon divorce. These laws vary greatly from
half interest in the copy right the moment
the work is created.
CHAPTER 8 | TRANSFERRING COPYRIGHT OWNERSHIP | 225
A court in Louisiana has held that
writer would probably be considered to be
copyrights are not community property
operating a business and would therefore have
in that state. ( Rodrigue v. Rodrigue, 50
primary management and control over any
U.S.P.Q.2d 1278 (E.D. La. 1999).) Courts
work he or she creates (the business’s assets).
in the other seven community property
This means that a married professional
states have yet to consider whether
writer may transfer all or part of the copy-
copyrights are community property.
right in a work created during marriage
No one knows whether they will follow
without the spouse’s consent or signature
California’s lead. If you’re married and
on any contract. However, the author is
reside in Arizona, Idaho, Nevada, New
legally required to give his or her spouse
Mexico, Texas, Washington, or Wisconsin, prior written notice of such transfers (but
the most prudent approach is to assume
failure to do so only results in giving the
that the copyright in any protectable work
nonauthor spouse the right to demand an
you create during marriage is community
accounting of the profits from the transfer).
property. However, check with a family law
or copyright lawyer familiar with the laws
When a spouse dies
of your state before taking any action.
Under California law (Probate Code
The following discussion briefly high-
§ 201.5), each spouse may will a one-half
lights the effect of according copyrights
interest in their community property to
community property status in California.
whomever they choose; this would include,
of course, their interest in any community
Right to control copyrights
property copyright. If a spouse dies without
Normal y, either spouse is entitled to sel
a will, the surviving spouse acquires all the
community property (which would include a
deceased spouse’s community property.
copyright) without the other’s consent. But the
profits from such a sale would themselves be
Division of copyrights at divorce
community property (that is, jointly owned).
When a California couple gets divorced,
The rule is different, however, as to gifts:
they are legal y entitled to arrange their own
Neither spouse can give away community
property settlement, jointly dividing their
property without the other’s consent.
property as they wish. If, however, they can’t
However, a special provision of California law reach an agreement and submit the dispute to (Civil Code § 5125(d)) pro vides that a spouse
the court, a judge will divide the community
who operates a business has the primary
property equal y. A judge would have many
management and control of that business and options as how to divide community property
its assets. In most cases, a married professional copyrights—for example, the judge could
226 | THE COPYRIGHT HANDBOOK
award all the copyrights to one spouse and
property at divorce. Equitable distribution
give the other cash or other community
is a principle under which assets (including
property of equal value. If there were, say, ten copyrights) acquired during marriage are copyrights of equal value, the judge could
divided equitably (fairly) at divorce. In theory,
give five to one spouse and five to the other;
equitable means equal, or nearly so. In some
or the judge could permit each spouse to
equitable distribution states, however, if a
separately administer their one-half interest in spouse obtains a fault divorce, the guilty al the copyrights.
spouse may receive less than an equal share of
the marital property. Check with a family law
Changing marital ownership of
attorney in your state for details.
copyrights by contract
Property acquired during marriage by
Recording Copyright Transfers
California residents does not have to be
With the Copyright Office
community property. Spouses are free
to agree either before or during marriage
The Copyright Office does not make
that all or part of their property will be
or in any way participate in transfers of
separately owned. Such an agreement must
copyright ownership. But the office does
be in writing and signed by the spouse
record transfer documents after they have
giving up the community property interest;
been signed by the parties. When a transfer
in some cases, it is desirable for the spouse
document is recorded, a copy is placed in
giving up the interest to consult a lawyer.
the Copyright Offices files, indexed, and
This is something a husband and wife must
made available for public inspection. This
discuss and decide on their own; we’re not
is similar to what happens when a deed to
advising you to take any particular action.
a house or other real estate is recorded with
For detailed discussion, see Prenuptial
a county recorder’s office. Recordation of
Agreements: How to Write a Fair & Lasting
transfer documents is not mandatory, but it
Contract, by Katherine E. Stoner and Shae
results in so many valuable benefits that it is
Irving (Nolo).
almost always a good idea.
Equitable Distribution States
Why Record a Copyright Transfer?
All states other than the nine community
Because a copyright is intangible and can
property states listed above (with the
be transferred simply by signing a piece of
exception of Mississippi) employ equitable
paper, it is possible for dishonest copyright
distribution principles when dividing
owners to rip off copyright purchasers.
CHAPTER 8 | TRANSFERRING COPYRIGHT OWNERSHIP | 227
EXAMPLE: Carol signs a contract transfer-
The Difference Between
ring the exclusive right to publish her novel,
Recordation and Registration
The Goniff, to Scrivener & Sons. Two months
later, Carol sel s the same rights in the novel
As described in detail in Chapter 3,
to Acme Press. Acme had no idea that Carol
copyright registration is a legal formality
had already sold the same rights to Scrivener.
Carol has sold the same property twice! As a
owner fil s out a registration application
result, if Scrivener and Acme both publish the
for a published or unpublished work and
book, they’ll be competing against each other
submits it to the Copyright Office along
(and they’ll both probably be able to sue
with one or two copies of the work. If the
Carol for breach of contract, fraud, and other
copyright examiner is satisfied that the
causes of action).
work contains protected expression and
the application is completed correctly,
Recordation of transfer documents pro-
the work is registered—that is, assigned a
tects copyright transferees from these
registration number, indexed, and filed in
and other abuses by establishing the legal
the Copyright Office’s records. The copies
priorities between copyright transferees
are retained for five years. Recordation
if the transferor makes overlapping
does not involve submitting copies of
or confusing grants. Recordation also
a work. Recordation simply means that
establishes a public record of the contents
the Copyright Office files a document so
of transfer documents. This enables
that it is available for public inspection.
prospective purchasers of copyright rights
As mentioned above, this can be any
to search the Copyright Office’s transfer
document relating to copyright. It can be
records to make sure that the copyright
for a work that is published, unpublished,
seller really owns what he or she is selling
or even not yet written. A good way
(this is similar to the title search that a
to distinguish the two procedures is to
homebuyer conducts before purchasing a
remember that written works containing
house). Finally, recordation of a transfer
protected expression are registered, while
document for a registered work gives the
contracts or other documents relating to
entire world constructive notice of the
the copyright in a work are recorded.
transfer; constructive notice means everyone
is deemed to know about the transfer,
whether or not they really do.
228 | THE COPYRIGHT HANDBOOK
What Can Be Recorded?
You can fill out the form online at the
Copyright Office website (www.copyright.
Any document pertaining to a copyright
gov/forms) and then print it out for mailing.
can be recorded with the Copyright Office.
The Copyright Office charges a $105 fee
Of course, this includes any document
to record a transfer document covering one
transferring all or part of a copyright—
title. For additional titles, there is an added
whether it be an exclusive license or
charge of $35 for each group of up to ten
assignment. It also includes nonexclusive
titles—for example, it would cost $140 to
licenses, wills, powers of attorney in which
record 11 titles, $175 to record 21 titles, and
authors or other copyright owners give
so forth.
others the power to act for them, and other You need to send all the following to the
contracts dealing with a copyrighted work.
Copyright Office in one package:
You can record a document without regis-
• the original signed Document Cover
tering the work it pertains to, but important
Sheet and one copy
benefits are obtained if the work is registered.
• the proper recordation fee in a check or
You can even record a document for a work
money order payable to the Register of
that doesn’t exist because it has yet to be
Copyrights (unless you have a deposit
written—for example, a publishing contract.
account), and
• the document to be recorded.
How to Record Transfer
Send your package to:
Documents (or Other Documents
Library of Congress
Pertaining to Copyright)
Copyright Office–DOC
To record a document with the Copyright
101 Independence Avenue SE
Office, you should complete and sign the
Washington, DC 20559-6000
Copyright Office Document Cover Sheet
Within six to eight weeks, you should
form and send it to the Copyright Office
receive a Certificate of Recordation from
along with the document and recordation
the Copyright Office showing that your
fee. Use of this form is optional, but it
transfer document (or nonexclusive license)
makes the recordation process much easier.
has been recorded. The original signed
If the work involved hasn’t already been
transfer document (or nonexclusive license)
registered with the Copyright Office, it
will be returned with the certificate.
should be at the same time the document is
l
recorded.
C H A P T E R
Copyright Duration
9
Works Created During or After 1978 .......................................................................................... 230
Single-Author Works: Life Plus 70 Years ............................................................................. 230
Works Made for Hire ......................................................................................................................231
Joint-Author Works .........................................................................................................................231
Anonymous and Pseudonymous Works ............................................................................ 232
End of Calendar Year Rule .................................................................................................................. 234
Works Created but Not Published or Registered Before January 1, 1978 ............ 234
Works Published or Registered Before January 1, 1978 ................................................... 236
Unpublished Works Registered With the Copyright Office Before 1978 ......... 237
Works Published Before 1923 ................................................................................................... 238
Works Published 1923–1963 ..................................................................................................... 238
Works Published During 1964–1977 .....................................................................................241
Special Rules for Works First Published Abroad Before 1978 .......................................241
Copyright Term for Foreign Works ........................................................................................241
Duration of Copyright in Adaptations (Derivative Works) ...........................................245
Termination of Transfers of Renewal Term Rights in Pre-1978 Works ....................245
Works Published Less Than 61 Years Ago .......................................................................... 246
Works Published More Than 61 Years Ago ........................................................................247
What to Do..........................................................................................................................................247
230 | THE COPYRIGHT HANDBOOK
Copyright protection doesn’t last
Online Copyright
forever, but it lasts long enough to
Duration Calculators
benefit many people besides the
author, potential y including children, grand-
Several copyright duration calculators
children, great-grandchildren, publishers,
are available online, including the Public
agents, and other people and businesses
Domain Sherpa (www.publicdomainsherpa.
who may have acquired an interest in the
com) and Public Domain Slider (http://
copyright.
librarycopyright.net/resources/digitalslider).
No matter how many times a copyright
The European Digital Library has also
is transferred, its duration does not change.
created a public domain calculator for most
The duration is determined by who the
European countries (www.outofcopyright.
original author was and how long he or she
eu/calculators). However, great care must
lives or, in some cases, by the date the work
be exercised when using these calculators.
was created or first published.
If the data inputted into a calculator is
wrong, the answer will be wrong too.
When a work’s copyright expires, it enters
This requires a good understanding of
the public domain; in effect, it belongs to
basic copyright principles—for example,
everybody. Anyone is free to use it without
what constitutes publication, notice
asking permission, but no one can ever
requirements, and protection for derivative
own it again. However, in 1998 Congress
works. Use of a calculator may give the
enacted the Sonny Bono Copyright Term
il usion of a clear answer when in fact the
Extension Act, which extended all copyright
copyright status of a work is unclear.
terms by 20 years. As explained below, one
result of this law is that no new published
works will enter the public domain until the
year 2019.
Single-Author Works: Life Plus 70 Years
Works Created During
As discussed in Chapter 1, “Copyright
or After 1978
The Copyright Handbook Page 40