State Law and Transfer of Copyright Ownership
- June 6, 2007 @ 10:41amivyheel says:Does anyone here know of a good resource wherein I might be able to determine whether, under a particular State's law, copyright ownership transfers along with the physical transfer of a document?
For instance, Person A sends a letter to Person B back in the early 1900s. Does copyright ownership transfer to the recipient, or does the author retain copyright ownership over the letter's content (as seems to be the case under current Federal law)? Does the result differ by state?
In particular, I am interested in North Carolina law.
Thanks in advance for any help.... - June 6, 2007 @ 12:34pmksmith says:When federal law directly addresses an issue, it preempts state law on the same issue. So I do not believe the result will differ from state to state -- copyright ownership is always distinct from ownership of the physical instantiation of the work.
- June 6, 2007 @ 12:42pmivyheel says:
When federal law directly addresses an issue, it preempts state law on the same issue. So I do not believe the result will differ from state to state -- copyright ownership is always distinct from ownership of the physical instantiation of the work.
Thanks for the reply. Is this still the case for works authored prior to the abolition of common law copyright? For instance: 1. Person A writes Person B a letter back in the early 1900s. 2. Person B dies soon thereafter (i.e. before 1937). 3. Person B's heir donates letter (along with other items) to a library, with explicit statement transferring all rights to library. Does the library have copyright ownership over Person A's letter, or has Person A retained it? Is this determined under State copyright law (i.e. "common law copyright") or does Federal law still preempt in such a case? Thanks again.... - June 7, 2007 @ 5:50amksmith says:My impression is that even before the 1976 Act, common law copyright protection had evolved into basically a right of first publication that courts protected for unpublished manuscripts. Such a right would, it seems to me, strengthen the presumption that copyright was divisible from the physical object rather than weaken it.
There is one case I know of where transfer of a physical work of art was found by the New York Court of Appeals to also transfer the common law copyright --Pushman v. New York Graphic Society (39 N.E. 2d 249, 1942). The same court, however, went the other way seven years later in deciding that sale of an unpublished manuscript by Mark Twain did not, in the absence of explicit language to that effect, transfer the right of first publication -- Chamberlain v. Feldman (89 N.E. 2d 863, 1949).
I do not know what authority or statute there is in North Carolina regarding common law copyright, but I certainly would not suggest assuming that the library in your hypothetical owns the copyright. As I say, it seems more likely that the heirs of Person A still retain at least some rights. The estate of Person B could not, therefore, transfer what they did not own.
If this is more than a hypothetical for you, I suggest consulting an experienced IP attorney. Off list I can recommend someone in the Research Triangle area, if that would be helpful. - June 7, 2007 @ 5:57amAFry says:ksmith is right. Federal law applies.
Person B's death is irrelevant. If this is an unpublished work, and if Person A died before 1937, then this work is in the public domain. No one has copyright.
If this is an unpublished work and if person A died in 1937 or later, then Person A's heirs retain copyright until 70 years after the author's death.
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm contains more info on published works. - June 7, 2007 @ 6:14amivyheel says:[quote=AFry]ksmith is right. Federal law applies.
Person B's death is irrelevant. If this is an unpublished work, and if Person A died before 1937, then this work is in the public domain. No one has copyright.
If this is an unpublished work and if person A died in 1937 or later, then Person A's heirs retain copyright until 70 years after the author's death.
http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm contains more info on published works.[/quote]
Thanks for the replies, guys. I certainly appreciate the help. Your answers are, unfortunately, what I understood to be the case as well.
The problem with simply examining A's life/death is that, in actuality, there are many, many A's for which I would need to do so. In other words, B received letters from many people, some of whom may be more difficult to track down, and some of whom could have conceivably (somewhere down the line) transferred their rights to other persons.
If it were the case, perhaps within the state and/or through a decision such as Pushman, that rights were transferred to B, it would seemingly make the task of determining the scope of permissions with regard to the letters a much easier one.
Again, thanks for the help.... - June 7, 2007 @ 7:53amAFry says:I don't know as much about orphan works as I should, but I think you will find this useful: http://www.copyright.gov/orphan/
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