An essential difference in ownership
A reader, M.S., has spent considerable amounts of time reviewing, transcribing and readying a memoir written by his grandmother for publication. He has personally written the preface, and his sister has written a biographical note and produced the cover art.
There’s just one thing he hadn’t quite thought through, just yet.
What about the copyright to the to-be-published memoir?
The Legal Genealogist is awfully glad M.S. thought about this before publishing… because the answer may not be what he wanted to hear.
In this case, as in most cases, copies of the grandmother’s memoir were given to her own children — two daughters, one of whom was M.S.’s mother. The aunt’s copy was lost to a household accident, but M.S.’s mother gave her copy to her children, M.S. and his sister.
“My grandmother never registered a copyright of the book,” M.S. notes. So, he wondered, just who could register it now? In other words, just who owns the copyright today? Did he? Did it belong to him and his sister? And what about their four cousins, children of the aunt whose copy of the memoir was lost?
To answer that, we need to back up one more time and review the basics of copyright.
First and foremost, we need to remember what’s eligible for copyright protection and what isn’t. Copyright law protects “original works of authorship fixed in any tangible medium of expression.”1 That definition doesn’t include “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”2
So it’s clear (or it should be) that, under the law, this memoir is covered by an existing copyright. Because it was an “original work… of authorship fixed in any tangible medium of expression,”3 the memoir writer — the grandmother — had full copyright protection on it, and copyright in unpublished works lasts for 70 years after the death of the creator.4 Since M.S.’s grandmother died in 1980, her copyright persists until 2050.
Second, we need to understand that owning a specific physical item — in this case, that copy of that memoir — is entirely separate and apart from owning any copyright there may be in the items. The U.S. Copyright Office emphasizes that: “Mere ownership of a copy or phonorecord that embodies a work does not give the owner of that copy or phonorecord the ownership of the copyright in the work.”5
That distinction — between owning the thing and owning the copyright covering the thing — comes right out of federal copyright law:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.6
That right there is the essential difference in ownership when it comes to copyright. The fact that M.S. and his sister own the only surviving copy of the memoir doesn’t by itself give them ownership of the copyright to the memoir. The fact that M.S. did most of the work to get it ready for publication doesn’t change the analysis.
So… who does own the copyright? The law itself provides that “Ownership of a copyright . . . may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.”7 In other words, we need to do basic genealogical research applying inheritance law.
Here, M.S.’s grandmother didn’t leave a will. So we’d look to those “laws of intestate succession” and, most likely, her copyright passed to her children — her two daughters — as her heirs at law.8 In that case, each daughter would have had an undivided one-half interest in the copyright.
Both M.S.’s mother and his aunt have died, and neither of them left a will. Assuming the intestate laws are the same, then M.S. and his sister jointly own their mother’s one-half interest and their four cousins — children of the aunt — jointly own the other one-half interest.
In other words, all six cousins jointly own the copyright. So any copyright filing would have to be made by the estate of the grandmother or by the group of cousins jointly: the Copyright Office will only accept a filing by “a claimant who owns all of the rights that initially belonged to a deceased author.”9
Now… any of the cousins can give his or her interest in that copyright to M.S. as long as the transfer of ownership is in writing.10 But until and unless all cousins agree, the essential difference in ownership here is between ownership of the thing and ownership of the copyright.
Cite/link to this post: Judy G. Russell, “Copyrighting the memoir,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 20 Dec 2022).
- 17 U.S.C. § 102(a). ↩
- U.S. Copyright Office, “Copyright in General: What does copyright protect?,” Copyright.gov (https://www.copyright.gov : accessed 20 Dec 2022). ↩
- 17 U.S.C. § 102(a). ↩
- See generally U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 4 (https://www.copyright.gov : accessed 20 Dec 2022). ↩
- Ibid., PDF version at p. 3. ↩
- 17 U.S.C. §202. ↩
- 17 U.S.C. § 202(d)(1). ↩
- Individual state laws as to who gets what when there is no will can differ, but this is the most likely scenario. ↩
- U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §405.5 (3d ed. : 2021); PDF online, Copyright.gov (https://www.copyright.gov : accessed 20 Dec 2022) (emphasis added). ↩
- See generally Circular 1: Copyright Basics, PDF version at p. 4. ↩