Fundamentals of Copyright and the Problem with Lost Owners (Part One)

Many people find the comparison of real property to intellectual property disconcerting or inappropriate. The arguments I have heard include “one is tangible, the other is intangible” or ” a finite number of people can use one, while millions of people can use the other.”

Regardless, the legal vehicles for ownership and management of real and intellectual property are very similar. The owner of either may transfer complete ownership of the property to a third party through sale, descent or bankruptcy. Likewise, both intellectual property and real property may be leased out to third parties for full or limited use. Similarly, the owner of a shopping mall allows guests on its property without transferring any indicia of ownership in the same way that website operators allow users to visit the site without the user walking away with an ownership interest.

Ownership in real property requires proof. The owner of property must file title with a government entity through which a chain can be created back to the original owner. In the United States, however, once a work has been transposed to tangible form copyright automatically attaches. Though you may register your work with the Copyright Office of the Library of Congress, registration is not required to get the majority of the benefits available to a copyright owner. In fact, no formalities, including notice to the world through the c in the circle, are necessary to secure your rights in a protected work!

Sidebar: In 1988, the United States of America became a signatory to the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention began its life as an international treaty in 1886! Significantly it reflects the European approach to copyright that includes the droits moraux (the “Moral Rights”) of the creator in protected works. While the Framers of the Constitution included copyright, they seem to have limited copyright to its economic elements without concern for the Moral Rights of the creators (see U.S. Constitution, Article One, Section 8: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Somehow, though, America ended up becoming a signatory in 1988 without actually adopting the droits moraux concept. Similarly, under the Berne Convention there were not supposed to be any formalities to securing copyright. Yet in America copyright owners do not get the full benefit of the rights without registration. So, there are still some formalities.

However, the owners of real property have to take steps to protect their interests and to maintain ownership. In the event that an owner lapses in the oversight of the property and somebody squats on it for a statutorily defined period of time we stand to loose our ownership interest through a process called “adverse possession.”

Additionally, through a variety of means the government may acquire the ownership of real property. Owners of property, generally, have to pay taxes on the property. Failure to do so may result in the state seizing the property. Similarly, if an owner dies without heirs or a will, the property may escheat to the government. Likewise, the government can acquire the property for a fair market value through the exercise of its eminent domain power.

On the other hand, creators, and their assignees and licensees, do not have to take any steps to secure their rights in copyright protected works, or in fact to maintain them. Once copyright attaches to a work it is automatic. While ownership of a work may be subject to loss through bankruptcy, descent or otherwise, the exclusive rights that attach to a protected work are still enforceable and are not subject to loss.

The passage of time is the only surefire way for a protected work to loose the exclusive rights associated with copyright. Works created after 1978 are entitled to almost an indefinite period of protection. For example, individually created works are protected for the life of the author plus 70 years. A photograph taken when an artist is 20 years old will be subject to copyright for her entire life and then another 70 years. Legitimately that photograph might be subject to copyright for over 140 years!

Unlike with real property, there may never be a “chain of title” for a protected work, nor may there be any notice that a copyright has been claimed on the actual work. Registration with the Copyright Office has not been required to establish copyright interest since 1978. There has been no requirement that creators mark works with any copyright notice since America became a signatory to the Berne Convention in 1988.

Sidebar: Under the Copyright Act of 1909, which was effective through 1978, registration and notice were both required to enforce a copyright. There term of copyright in effect when the Copyright Act of 1976 was enacted was 28 years, with a onetime renewal of 28 years. The Copyright Act of 1976 amended the renewal term to 47 years, and such renewal time was extended again in 1998 (yes, the Bono Act) for 20 more years. For all works created prior to January 1, 1964, a renewal application had to be filed with the Copyright Office to obtain the extended protection. For works created after January 1, 1964, but before December 31, 1977, renewal and extension after the initial 28 year term is automatic.

While it has been a great benefit to creators for copyright to attach automatically, there has been a significant unintended consequence to the automatic attachment: Third parties have had a difficult time obtaining the appropriate permission to use works because they have not been able to track down the owner of a work.

Consider a photograph taken in 1967 which may have been registered with the Copyright Office under a woman’s maiden name. She marries, takes her husband’s name but does not update her copyright registrations. Time passes, and so does she. Having found the photograph in a clippings file about his subject, a historian now wants to include the photograph in a book. His publisher wants to use it on the cover.

The publisher being extremely risk adverse, not wanting to be sued for copyright infringement, proceeds to obtain the permission from the copyright owner to use the photograph. A search of the records at the Library of Congress reveals that the work is registered, and thus subject to copyright. The publisher attempts to locate the photographer to obtain permission but due to the change in her name or other factors is not able to find her or any current owner of the rights in the work.

For more information, visit Part Two—> HERE

About Nancy Prager

Nancy Prager is an attorney based in Washington, D.C. She represents a wide range of clients on matters from intellectual property to estate planning. Before starting her own practice, she practiced with firms in Memphis and Atlanta, as well as providing business development services to technology companies. She launched her practice to offer strategic legal services to clients at an affordable rate. Additionally, Nancy is a sought after speaker and writer on issues related to the convergence of intellectual property, technology and media. Nancy was asked to write a series of commentaries for News.com on the emerging legal issues related to the transmission of content on the internet. She has spoken to organizations and conferences around the country on issues related to the convergence of technology, content and intellectual property, as well as strategic legal issues for companies, individuals and artists. Journalists often rely on Nancy as a resource for emerging legal issues. Nancy has a strong commitment to social justice. She has founded, or co-founded, a number of organizations and programs that provide tangible services to their constituencies. For example, while a student in law school she developed the Domestic Violence Advocacy Center that provides legal services to victims of domestic violence. Additionally, she has been involved with a number of organizations that provide services to children and their families, including serving on the boards of the Harwood Center and Porter Leath Children’s Services. She is a graduate of Wake Forest University School of Law and the University of Wisconsin, Madison. She is a member of the District of Columbia Bar, the State Bar of Georgia and the State Bar of Tennessee. She has been a member of a variety of legal organizations including the Copyright Society of the USA and the American Bar Association.
This entry was posted in copyfight, copyleft, copyright, Copyright Policy, Orphan Works and tagged , , . Bookmark the permalink.

2 Responses to Fundamentals of Copyright and the Problem with Lost Owners (Part One)

  1. Pingback: Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences (Part Two) « Reasonable Balance

  2. Pingback: Who knew? Not 14, but 5 years is the ideal copyright term. « Reasonable Balance

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