Take it, It's Mine: Illicit Transfers of Copyright by Operation of Law
affiliation not provided to SSRN
Washington and Lee Law Review, Vol. 63, p. 1011, 2006
Given the economic significance of copyright and copyright ownership, doctrinal developments that introduce uncertainty as to such ownership or that flout the legislative intent of the Copyright Act merit close examination. This Essay considers recent decisions that have purported to effect transfers of copyright ownership by operation of law, finding that they are inadequately reasoned in terms of the legislative text and history, and that they contravene important principles of copyright ownership and transfers of ownership that were developed with an eye to preventing inadvertent or unintentional transfers.
Beginning with a brief survey of allocations of ownership by the Copyright Act itself, the Essay considers joint ownership, work for hire, and compulsory licenses, concluding that the Act - and decisions interpreting the Act in these areas - are properly conservative and focused on authorial intent. It then turns to an examination of cases purporting to achieve copyright transfers by operation of law under the Copyright Act, including transfers in the context of nonexclusive licenses and judicially mandated transfers in asset transfer or bankruptcy situations. This is followed by an analysis of copyright transfers by operation of state community property law, and how they conflict with the Copyright Act and related Supreme Court authority. Because for various reasons these decisions are relatively low profile (e.g., they have been reversed on other grounds, or certiorari has been denied), they may appear to be relatively insignificant. At the same time, however, these decisions are already being relied upon for their conclusions as to transfers of copyright by operation of law, implying considerable risk that they will reify into accepted authority unless corrected. In view of the serious damage these decisions make to the proper doctrinal grounding of the Copyright Act and its protection of authorial control of copyright rights, greater attention to them is merited, and a judicial change in course is urgently needed.
Number of Pages in PDF File: 46
Keywords: copyright, transfer, operation of law, federal, author
JEL Classification: K39
Date posted: April 15, 2007
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