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.
Around the world, the minimum time generally is 50 years after the death of the creator.1 In the United States, it’s generally 70 years after the death of the creator.2
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. ↩
My heartfelt thanks for your assistance in suggesting ways to help me compose my request to the Iowa State Historical Society to use my ancestor’s diary extracts in his biography. It took a while, but I recently received permission to do so. Now, I just have to find time to finish the book. 🙂
Excellent! Glad I could help.
But, all that assumes a valid copyright exist on those photos. Digital images or the box of photos would only have copyright if the father was the original creator. Right?
I love this question because it gives me the chance to give my favorite answer: it depends!! What if the photos were taken by the GRANDfather, who died, say, in 1980? Copyright might have been inherited by his son, the sisters’ father, and then passed to the sisters. The 70 years would end in 2050 (70 years from the grandfather’s death) and not 2089 (70 years from the father’s death), but it definitely is an “it depends” situation.
Many thanks, Judy, for the simple yet clear explanation for how this process works in the USA.
The system is almost identical under UK law (and indeed in the Republic of Ireland), with the exception that rules governing inheritance in cases of intestacy are laid down at the national level rather than state level. That is to say, Scotland and Northern Ireland (and the Republic) each have slightly different rules to England and Wales.
And because, historically, UK copyright law differentiated between published and unpublished works, section 93 of the Copyright, Designs and Patents Act 1988 can be particularly relevant to some family bequests.
This section says that where a physical item, such as a photograph album or a set of personal papers, which has not hitherto been published, is bequeathed in a will and no reference is made in the will or codicil to copyright in that item, the copyright is presumed to transfer along with the physical item, to the legatee. Obviously this only applies to items for which the testator was the owner of the copyright prior to his/her death.
Thanks for adding the international perspective.
I’m curious about the continuation of a series, or the finishing of an unfinished novel or novels. An example here is the decision by Maynard MacDonald not to allow any writer to continue his father John’s very popular Travis McGee series.
As a slow older writer with a novel trilogy in progress (first volume published, second one almost finished, final novel complete only in a very, very rough first draft), I am wondering how to deal with either my heirs finding someone to continue and finish the trilogy or in them allowing someone who asks permission to finish what I started to do so.
And knowing what they should do if an unauthorized person decides to continue or finish without permission from my heirs.
Having already put twenty-one years of my life into this project, your post has raised questions I don’t even know how to look up. Thanks!
You’re going to want to consult with an attorney licensed in your jurisdiction for specifics, but in a very general way what you’re talking about is the right to create a derivative work (one based on yours but not completed by you). That right is one of the exclusive rights covered by copyright, so you own that right during your lifetime and your heirs own it for 70 years after your death. This is something you could arrange for in advance if you chose to. Again, you should talk to a lawyer about specifics.
We have a will made in New Jersey a few years ago, and drafted originally by my writing partner who at the time was a practicing attorney (and has gotten published herself lately). I’ll talk to her first, because I’m sure she has set hers up properly for Vermont where she lives now, but then I’ll add it to the list of questions for an attorney in our permanent new state, California – to make sure everything is up to date. Thanks.
Am a Canadian and understand that photos taken before 1949 are copyright expired. Isn’t there a similar date in other countries where either date of death is presumed or just set at?
It’s not quite that simple in Canada, which follows the 50-year rule. See https://cippic.ca/en/FAQ/Photography_Law#Term. For the United States, which follows the 70-year rule, you can see https://guides.library.cornell.edu/copyright/publicdomain. While not perfect, you can generally assume that other 50-year countries will do what Canada does, and that other 70-year countries will do what the US does.
Thank you so much for this answer! Here’s a twist I hadn’t even considered until I read this…I suppose emails are also “intangible personal property”? And postal letters would be “tangible personal property”? My dad was also genealogist and had a lot of correspondence in both categories that would be valuable to our ongoing family research.
If the Copyright Office follows its usual definitions, no, these would be tangible because they can be read with a computer. (Tangible in this context doesn’t mean you have to be able to hold it in your hand.)
Hmm…at the risk of opening another can of worms, how is that different from a digital photo, which can also be “read” on a computer?
From the standpoint of whether it is tangible or not, there is no difference. A word processing file, a digital image, an email — all of those would be considered in tangible form by the Copyright Office (“any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation”).
I cannot edit, but I just realized….the REPLIES….those would not be his to bequeath. So that gets a little sticky….
Correct. Copyright in the replies rests with the writer (or writer’s heirs).