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… not a legal transfer

It’s a question that comes up a lot in the emails to The Legal Genealogist.

This time, it came from a genealogical society that wants to honor a long-time volunteer.

“This volunteer has written many columns for our newsletter over the years,” the inquiry began. “We’d like to collect the best and publish them in a book to honor her work — and maybe raise a little bit of money for the society.”

The issue, of course, is copyright: who owns the right to publish those columns in this form?

And the answer is almost inevitably the same: it’s not the person or society asking the question.

copyright transfer law

Here’s the problem.

Copyright — that bundle of exclusive rights granted by law to the creator of original works1 — belongs to the person or persons who created the work.2 It begins the minute the work is created and, in the United States, in some tangible form, which can include something a computer can read or display, and it lasts for the lifetime of the creator plus an additional 70 years.3

And even though the columns were written for the society to publish in its newsletter, in almost every case, the owner of the copyright is still the creator of the original work — the column writer. The copyright statute goes so far as to explicitly provide that somebody contributing to a collective work keeps the copyright in his or her own part of that work.4

There are exceptions for work that is legally considered a “work for hire” — a technical term that means one of two things: (1) a work “created by an employee as part of the employee’s regular duties”; or (2) a work created under an express written agreement that it is a work for hire and is “specially ordered or commissioned” for specific purposes.5 And even though a contribution to a collective work can be a work for hire, it’s only going to be one if there’s an express written agreement.

All of which goes directly to the point made by the copyright statute itself: copyright belongs to the person who created the original work, and it can only be transferred by “an instrument of conveyance, or a note or memorandum of the transfer, … in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”6

So that handshake deal when the columns were written? It’s perfectly okay to print the columns originally, but it’s not a legal transfer of copyright. The oral say-so? Not a legal transfer. Even an email from the creator may not be enough, unless it’s in a form recognized by law as including an electronic signature.

Without an express written agreement signed by the copyright owner, there isn’t any transfer of copyright, and the society that published the columns doesn’t have the right to republish them without the permission of the writer or, if the writer is deceased, the current copyright owner (the person or persons who inherited the copyright after the writer’s death).7

Got that?

Get it in writing.

Because the spoken word isn’t a legal transfer.


Cite/link to this post: Judy G. Russell, “The spoken word,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 27 Mar 2024).

SOURCES

  1. U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF at 1, Copyright.gov (https://www.copyright.gov/ : accessed 27 Mar 2024)
  2. 17 U.S.C. 201(a), “Ownership of copyright: Initial Ownership.”
  3. U.S. Copyright Office, “Circular 15a: Duration of Copyright,” PDF at 1, Copyright.gov (https://www.copyright.gov/ : accessed 27 Mar 2024).
  4. 17 USC 201(c).
  5. U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF at 3
  6. 17 U.S.C. 204(a), “Execution of transfers of copyright ownership.”
  7. Copyright is an inheritable right, passing either by will or by the intestate laws of the jurisdiction where the creator died. See U.S. Copyright Office, “Circular 1: Copyright Basics,” PDF at 3 (“You can bequeath a copyright by will or pass it along as personal property under applicable state laws of intestate succession”).
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