Who gets it…?
The Legal Genealogist trusts that — by now — readers understand that copyright lasts for some time after the death of the person who created the work: the book; the photo; the painting.
What may not be as well understood is who owns the copyright at that point — and how that person comes to own it.
That’s clear from reader questions, like the one that came in yesterday: “In order to claim inheritance of a photo or collection of photos, does one have to explicitly have that inheritance stated in a will? For example, my dad passed away in 2019, and my sister and I were the sole beneficiaries of his will. He left us instructions on where the digital photos were stored and passed on boxes of physical photos…but they are not explicitly mentioned in his will. Do we own the copyright to his photos now?”
Here’s the bottom line: a copyright is just another piece of personal property, like somebody’s car or desk. The only difference is that the car or desk is tangible personal property; a copyright and other intellectual property is intangible personal property. But ownership passes to the deceased person’s heirs just the way that car or desk does.
And as genealogists we should know how property passes to the heirs: by testate succession (when there is a will) or by intestate succession (if there isn’t one). The Copyright Office makes it clear that works with copyrights as well: “You can bequeath a copyright by will or pass it along as personal property under applicable state laws of intestate succession.”3
Knowing that much isn’t quite enough to answer the reader question, though, is it? So… let’s work it through.
In any given case, we start with determining if the copyright owner left a will. If he or she did, then:
• Does the will mention copyrights specifically or intellectual property generally? If so, that provision controls.
• If the will doesn’t mention copyrights, does it mention personal property generally? If so, that provision controls, but there’s a potential hitch here: the provision can’t be limited to tangible personal property.
• If the will doesn’t mention copyrights, or its personal property provision is limited to tangible property, then does the will have a residuary clause (“and all the rest and residue of my estate I leave to…”)? If so, that provision controls.4
If the deceased copyright owner didn’t leave a will or if there is absolutely nothing in the will that covers personal property at all,5 then:
• What state’s law controls how any personal property would be distributed to descendants?
• What does that state’s law say about who’s entitled to inherit personal property?
• Who was alive when the copyright owner died who would have been included in that group?
• Who is alive today who might have a claim to any part of the copyright owner’s personal property?
In this reader’s case, it sounds very much like the copyright owner’s will gave everything — lock, stock, barrel and copyrights — to the reader and her sister. And if that’s the case, then they do jointly own those copyrights — and will for 70 years after their father’s death.
Cite/link to this post: Judy G. Russell, “Inheriting the copyright,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 19 Oct 2021).
- “Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886),” World Intellectual Property Office (https://www.wipo.int/ : accessed 19 Oct 2021). ↩
- Title 17, United States Code, §302(a). ↩
- See U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 3 (http://www.copyright.gov : accessed 19 Oct 2021). ↩
- If not, fire the estate lawyer. Seriously. Every will should have a residuary clause. ↩
- Ditto on firing the estate lawyer. ↩