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medium of expression,”3 the memoir writer — the grandmother — had full copyright protection on it, and copyright in unpublished works lasts for 70 years after the death of the creator.4 Since M.S.’s grandmother died in 1980, her copyright persists until 2050.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).
SOURCES
- 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. ↩
This account of a copyright owned jointly by six cousins is interesting. Are you saying that if one of the cousins/owners published the book without the consent of the other five, that would be a violation of their rights? On the flip side, would all six owners have to agree before taking enforcement action?
Undivided joint ownership (which is what this likely is) makes it hard to say that it’s actually a violation of the rights of the other cousins to publish, but it’d sure muddy the waters. (Just for starters: Who gets the proceeds of the publication?) And since you can’t enforce a copyright in court unless you register it, all six would have to act together.
Judy, as you noted copyright law is what it is, not what the grandson hoped it was.
That said, why is the grandson wanting to formally register the copyright? Why would he need to if all that is gained is the ability to sue in the event of infringement?
Assuming that the grandmother was not of any note to the broader world, it seems to me very unlikely that any publication of the memoir by anyone, authorized (by the joint heirs) or unauthorized, would have anything but a de minimis effect financially on the estate, good or bad.
Does the grandson have a good-faith belief that his grandmother would have wanted her memoir to be widely available to the family — despite the fact that she only made two copies during her lifetime? If so, would it be sufficient from a standpoint of ethics for him to informally contact all of the joint heirs beside himself and say something like “I have made a transcription of grandmother’s memoir. Since only one copy of it is left now and because lots of copies keeps stuff safe(r), do any of you mind if I allow the broader family to acquire copies of my transcription if they are interested? And if you are okay with that, are you also okay with me donating a copy to FamilySearch for them to put online?”
There are benefits to registration, including the right to collect statutory damages if there’s infringement, so registration can be a good choice when you’re choosing to publish something on a commercial platform. In this case, the grandson isn’t intending to distribute copies to family, but to publish the memoir commercially.
Very interesting problem. I have a slightly different scenario – a collection of poems and stories largely written by 2 x Great grandmother but includes items from her friends and relatives and also previously published works of the time that she liked (Lord Byron for instance) and now the physical copy is owned by a 5th cousin. Some of her poems were published in newspapers of the time. 2 x Great grandmother died in 1892 with no Will. I wish to publish the entries and in many cases research the background and add this to most entries. Does anyone still own the copyright and if not do I if I publish it or what happens?
Australian law is the same as US in terms of how long copyright lasts, and it sounds very much like everything you’re talking about is long out of copyright. Your GG grandmother’s work would have gone into the public domain 50 years after her death (pre-2005 Australian law), so any copyright in her work has long since expired. Items from others who similarly died that long ago will also be long out of copyright. So no-one owns the copyright to any of this material. If you publish, it’s possible that you MIGHT acquire a copyright in your particular selection and arrangement of materials, but not in the materials themselves.
Wonderful reminder to me about something I want to get into in the New Year.
Obviously the newly written preface and biographical memoir from the questioner would be copyright.
And any notes/footnotes?
If I am able to put together what I am hoping to do, all I care about is that the subject is brought to the attention of more people. The material is well out of copyright, but is largely buried in libraries where nobody can see it.
But I do need to recognise that others have written commentaries on parts not so long ago and would like to have their written approval for what I hope to do. Just so there are no misunderstandings later. Looks like a trip to a copyright lawyer.
(I live near an airport, so while we are well serviced for air and space! lawyers, I might have to look further afield.)
In 2006, my uncle’s niece-by-marriage decided to honor this uncle, RC, by collecting anecdotes about him from both his nieces and nephews as well as his wife. RC wrote a brief memoir of his life and 19 of us nieces and nephews contributed stories, some from our adulthood, but mostly of our fondest childhood memories about him. The niece, BB, then put all this together in an 8-page document and distributed it to many family members. Now, 17 years later, I edit a genealogical journal and would like to publish this very sweet document in it. There is no copyright–at least nothing is marked to indicate that on my copy. But I feel I should get permission from the other 18 people (or their survivors) to publish what they wrote. Is this necessary?
Legally, yes. Anything created after 1978 in the United States is automatically copyrighted — it doesn’t have to be marked to indicate any rights.
This was really clear and useful as always. However, I’m wondering if there is a tipping point when it becomes a new work? I have transcribed my Grandma’s memoirs and am adding a substantial number of footnotes (stories, corrections, identifying people and sources) plus photos. Is there a point where this becomes either my copyright or shared copyright? Thanks!
No particular tipping point, no. All the new materials are yours and may be copyright protected (remember only the way you say things is protected; facts are not copyrightable) — all of her memoirs will protected only during the copyright period (currently in the UK, her lifetime plus 70 years).