How To Transfer a Copyright: Literary Law for Authors
Welcome to the monthly series on legal issues for authors to empower you, the artist entrepreneur. Today we focus on how to transfer a copyright from our monthly guest columnist, Kelley Way, a lawyer specializing in literary law and other aspects of law. She’s also a writer! If you have general questions for Kelley on contracts or other aspects of literary law, be sure to comment below. And you can email her, too.
PS. A list of books on literary law can be found here.
And now for a bit of necessary legalese: Please note that this article does not constitute legal advice, and that an attorney-client relationship is not formed by reading the article or by commenting thereon.
Beth Barany, the publisher of the Writer’s Fun Zone, recently asked me about copyright transfer. So I drafted a post on that topic.
Let’s start with how long a copyright last. (More on what copyright does here, in last month’s post.)
A copyright lasts for the lifetime of the author, with an additional 70 years tacked on (unless it’s a work-for-hire or anonymous/pseudonymous work, in which case it lasts 120 years from the date of creation or 95 years from the date of first publication, whichever expires first). This means that it is expected for a copyright to have more than one owner during its lifetime.
So what happens when a copyright changes owners? How is ownership of a copyright transferred?
Copyrights are considered property (intellectual property, to be precise), so it exists separately from its creator, and a change of ownership doesn’t affect the copyright itself. It will still last for the life of the author plus 70 years, and the new owner can do all the same things with it that the old owner could. It is typically transferred through one of two methods:
- Direct transfer. A copyright owner can always transfer his or her copyright to someone else. In order to be valid, the transfer must be in writing and signed, unless the rights being transferred are nonexclusive (in which case it’s more like sharing the ownership, so the rules are looser). The owner can transfer all of his or her rights in the copyright, or he or she can transfer a selection of rights and keep the rest. Transfers were permanent under the old Copyright Act, unless the parties contracted otherwise, but abuse of the system led Congress to introduce a termination right, where an author can terminate the copyright transfer after a certain number of years, no matter what was agreed to in the contract. This is causing a major headache in the comic book industry, as authors or their heirs are terminating (or trying to terminate) the companies’ rights to major characters, such as Superman. Naturally the companies are attempting to get around this, but that’s a story for another blog post.
- Inheritance. Like any other property you own, a copyright is transferred to your heir(s) upon your death, barring any contract or agreement to the contrary. A copyright owner can also transfer it through a will, the same as with his or her house. Some authors choose to create a trust or corporation that manages the copyright after their death. That way the copyright is owned by an entity rather than a person, which prevents the possibility of multiple transfers if anything should happen to the new owner(s), and makes it easier for others to figure out who to go to for permission to borrow from or adapt the work. It also allows the copyright to be managed by disinterested parties, who give the revenues to designated beneficiaries. However, setting up a trust or corporation can be expensive and time-consuming, so it’s not really worth the effort unless there are multiple copyrights to be managed or there’s a fair bit of money involved.
There aren’t any hoops that need to be jumped through once the transfer has taken place. It would be wise for the new owner to notify the Copyright Office of the transfer, so that it’s a matter of public record, but it’s not required. The new owner just needs to make sure he or she keeps some form of proof of either ownership or transfer, to show anyone that might question their ownership of the copyright.
Please let me know if this was helpful, interesting, or just plain confusing. If you have questions, comments, or suggestions for future posts, please email me or leave a message in the comments below.
ABOUT THE AUTHOR
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. She can be contacted at KelleyAWay@gmail.com.