Transferring your Copyright & Getting it Back, Part One
(An excerpt from Copyright Companion for Writers by Tonya M. Evans-Walls, Esq. now available at www.LiteraryLawGuide.com, www.Amazon.com, and your local bookstore)
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Copyright 2006 Tonya M. Evans-Walls, Esq. (info@legalwritepublications.com). Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, including copyright and contact information.
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A copyright owner generally has the exclusive right to copy, distribute, prepare derivative works, display the work publicly and perform the work publicly -- and the right to preclude others from doing so. These rights are collectively referred to as the owner's "bundle of rights." Any or all of the copyright owner's bundle of rights or any subdivision of those rights may be transferred to a third party. In other words, you may transfer one right in the bundle to one person or entity and another right or two or three to another person or entity. Therefore it is important to understand the different ways to legally transfer your rights to others.
Ways to Transfer your Copyright
Generally, there are three types of transfers: (1) a nonexclusive license, under which you remain the owner of your work, and the licensee can use your work but cannot exclude others from doing so; (2) an exclusive license, under which you remain the owner of your work but no one other than the licensee can use the work—not even you; and (3) an assignment, under which you give ownership of your work to the transferee. Further limits on transfer include the number of rights transferred, the term, and the geographical scope.
To be valid, the transfer of exclusive rights must be in a written agreement signed by the owner of the rights conveyed (or the owner's authorized agent). But nonexclusive transfer of a right does not require a written agreement. So for example, the transfer of the exclusive right of publication to a publisher or agent requires a signed agreement, but the transfer of the nonexclusive right to reproduce an excerpt of a literary work in a newsletter does not.
As a matter of course, however, you should get all agreements relating to your copyright interests in writing. Having a signed agreement memorializes the terms and reduces the likelihood of misunderstandings as to what was promised by each party.
A copyright may also be transferred by operation of law. For instance, copyright can be bequeathed by will or by state law if an individual dies without a will. Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property and the terms of contracts or conduct of business. For information about relevant state laws, consult an attorney in your area.
Copyright assignments can be filed, or recorded, in the Copyright Office as transfers of copyright ownership. Recording the assignment gives notice to the world that the copyright interest has been transferred. Although you are not required to record the transfer to make it valid, recording the assignment does provide certain legal advantages and may be required to validate the transfer against third parties. For instance, under certain conditions, recordation establishes the order of priority between conflicting transfers (that is, who received the transfer first), or between a conflicting transfer and a nonexclusive license. Recordation also establishes a public record of the transaction and provides "constructive notice," which is a legal term meaning that members of the public are deemed to have been notified even if they have not actually received notice of the transfer. To establish constructive notice, the recorded document must describe the work with specificity so that it could be identified by a reasonable search, and the work must be registered with the Copyright Office.
Reclaiming Your Rights
Did you know that regardless of the terms of your transfer document (e.g., a publishing agreement or a license), you have the right to reclaim your copyright? Discussion about this little-known legal right for authors is just starting to emerge in the publishing industry. Publishers, for instance, may not want authors to know that the "life of copyright" term in most publishing agreements can be rendered null and void if a statutory termination is properly effected. But because different versions of the copyright law apply to different works, depending on when they were created, registered, and transferred, and depending on who transferred the rights, there are different rules for terminating transfers of those works to third parties.
I will discuss how to reclaim your rights in the next blog so be sure to subscribe so you don't miss the next post!
Ways to Transfer your Copyright
Generally, there are three types of transfers: (1) a nonexclusive license, under which you remain the owner of your work, and the licensee can use your work but cannot exclude others from doing so; (2) an exclusive license, under which you remain the owner of your work but no one other than the licensee can use the work—not even you; and (3) an assignment, under which you give ownership of your work to the transferee. Further limits on transfer include the number of rights transferred, the term, and the geographical scope.
To be valid, the transfer of exclusive rights must be in a written agreement signed by the owner of the rights conveyed (or the owner's authorized agent). But nonexclusive transfer of a right does not require a written agreement. So for example, the transfer of the exclusive right of publication to a publisher or agent requires a signed agreement, but the transfer of the nonexclusive right to reproduce an excerpt of a literary work in a newsletter does not.
As a matter of course, however, you should get all agreements relating to your copyright interests in writing. Having a signed agreement memorializes the terms and reduces the likelihood of misunderstandings as to what was promised by each party.
A copyright may also be transferred by operation of law. For instance, copyright can be bequeathed by will or by state law if an individual dies without a will. Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property and the terms of contracts or conduct of business. For information about relevant state laws, consult an attorney in your area.
Copyright assignments can be filed, or recorded, in the Copyright Office as transfers of copyright ownership. Recording the assignment gives notice to the world that the copyright interest has been transferred. Although you are not required to record the transfer to make it valid, recording the assignment does provide certain legal advantages and may be required to validate the transfer against third parties. For instance, under certain conditions, recordation establishes the order of priority between conflicting transfers (that is, who received the transfer first), or between a conflicting transfer and a nonexclusive license. Recordation also establishes a public record of the transaction and provides "constructive notice," which is a legal term meaning that members of the public are deemed to have been notified even if they have not actually received notice of the transfer. To establish constructive notice, the recorded document must describe the work with specificity so that it could be identified by a reasonable search, and the work must be registered with the Copyright Office.
Reclaiming Your Rights
Did you know that regardless of the terms of your transfer document (e.g., a publishing agreement or a license), you have the right to reclaim your copyright? Discussion about this little-known legal right for authors is just starting to emerge in the publishing industry. Publishers, for instance, may not want authors to know that the "life of copyright" term in most publishing agreements can be rendered null and void if a statutory termination is properly effected. But because different versions of the copyright law apply to different works, depending on when they were created, registered, and transferred, and depending on who transferred the rights, there are different rules for terminating transfers of those works to third parties.
I will discuss how to reclaim your rights in the next blog so be sure to subscribe so you don't miss the next post!
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by Tonya Evans-Walls
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posted by Legal Write Publications @ Sunday, December 10, 2006
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