Next in an occasional series on copyright — the family writings
When she died in 1976, reader Cassandra Chapman’s grandmother left behind some lovely writings. Some were inspirational thoughts, others her comments on the southern community where she grew up in the early years of the twentieth century.
The package of writings, some 100 pages or more in length, was first passed to Cassandra’s mother and, on her mother’s death some 30 years ago, to Cassandra.
And that is where the package has been, waiting, for this moment when the time seems right to have them see the light of publication. But, Cassandra worries:
There are no written documents or verbal communication, to my knowlege, to the family as to what would be done with the writings. What do I do with these papers? Of the three children of my grandmother only two grew to adulthood, my uncle and my mother. My uncle passed in 1972 (so) my grandmother’s only survivors are myself … and two brothers … Are those pages just to remain handwritten and stored away with the family? Can I or my brothers get them published? Please note that there was no will. Basically what can and cannot we do?
The answer here is pretty easy: Cassandra and her brothers can do with these writings whatever they’d like.
Remember that with family papers there are always two questions:
• Who owns the papers? and
• Who owns the copyright to the papers (if copyright is an issue)?
Here, the ownership of the papers is clear: they were passed from grandmother to mother to granddaughter. Assuming that Cassandra took possession of the papers with the knowledge of her brothers, then it’s a pretty safe bet that the law would say she owns the papers outright after having them for 30 years. But she considers herself a co-owner with her brothers, and that’s a fair view as well — probably more fair than the law requires.
So what about copyright? Is there one and, if there is, who owns it?
Because the grandmother died in 1976 and the papers were unpublished, copyright in the papers lasts for the life of the author plus 70 years.1 That means that copyright protection lasts until the end of 2046 on these writings.
So who owns the copyright? Cassandra’s grandmother left no will and no directions as to her writings, so she didn’t choose who had the rights she left behind. State law — the law of intestacy, which says what happens to property when there is no will — will fill in the gap.
And, fortunately, there is a very easy family situation to deal with in this case. Because there was no will, when Grandmother died, intestacy laws kicked in looking first for a surviving spouse (there was none) and then any surviving issue — children or grandchildren, for example.
Grandmother had only two children who lived to adulthood, Cassandra’s mother and her uncle. And the uncle died before his mother did — he died in 1972, his mother in 1976 — leaving no children of his own.
That means, under the intestacy laws of every state I know of, the only heir-at-law Grandmother had at the time of her death was her daughter, Cassandra’s mother. And when Cassandra’s mother died, her only heirs-at-law were Cassandra and her brothers.2
And that means that Cassandra and her brothers, together, have the right to choose among themselves what to do with Grandmother’s papers. They can publish them, donate them to an archive or library, divide them up among themselves.
Things obviously get more complicated when there are more heirs at law in a case like this. If Uncle had had children, then the cousins would probably all be joint heirs of the copyright and getting permission from everybody is harder.
Which is a lesson for all of us with our own writings, isn’t it? Who do we want making the decisions about our research papers and writings? Time to revisit the will, isn’t it? Especially about those early drafts we’d rather never saw the light of day…
- See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Information Center (http://www.copyright.cornell.edu/ : accessed 23 Jun 2013). ↩
- See generally “Intestate Succession,” Living Trust Network (http://livingtrustnetwork.com/ : accessed 23 Jun 2013). ↩