Attorney Steve® Copyright Law Essentials - Transferring or Assigning a Copyright.
Although many people do not view it the same way as other forms of property, copyrights are no different. They can be bought and sold, passed down via will, or just simply given (gifted) to another for any reason. As a company, you may want to expand your opportunities and purchase new copyrighted works to enter prospective markets. If you a creative author, photographer, software or game designer, you may be asked to transfer your rights. This blog covers some general topics.
Are copyrights transferable?
Yes, and it is a fairly easy process to go through. All or parts of an owner's exclusive rights can be transferred. According to the Copyright Office the transfer of copyright ownership is “an assignment, mortgage, grant of an exclusive license, transfer by will or intestate license, or any other conveyance, alienation, or hypothecation of any or all of the exclusive rights in a copyright, whether or not it is limited in time or place of effect.” This is a whole lot of words basically describing all the methods in which ownership of rights can be transferred. Their definition of “conveyance” is a written contract, bond, deed, note, or memorandum stating whom the parties involved is, what rights are being transferred, and the terms of the transfer (e.g. copyright is transferred for 3 years to John Doe from the owner Joe Shmoe). How you want to transfer it is up to you, regardless there are certain advantages to recording a transfer with the Copyright Office, which is completely voluntary.
How does the recordation of a transfer work?
In regards to the Copyright Office, there is a 5-step process your copyright will go through when you record a transfer or other action.
- receiving copyright-related documents from remitters for recordation;
- reviewing the documents to ensure they are eligible for recordation
- indexing information contained in the documents for use in the Office's public catalog of recorded documents
- making copies of the documents so they are available for public inspection
- returning documents marked as recorded to remitters
All of the recorded documents get uploaded to the public catalog that is available on the Internet. A description of each document, including party names, registration numbers, titles of works, heading notes, along with other information when available are all recorded on the public catalog. Although the Copyright Office recognizes the copyrighted works they do not enforce any agreements reflected in the records. This means that they do not monitor who uses what or how it is used, whether legal or not. Due to this, the Office does not determine if documents satisfy legal requirements necessary for said documents to be legally enforceable or effective.
Why would I want to have my works transfer recognized?
From reading the section above one might think there is little reason to have their works recognized by the Copyright Office, but there are a number of benefits provided from doing so. There are four main reasons the Office provides for recordation:
- Under certain conditions, recordation establishes legal priority between conflicting transfers or between a transfer and a nonexclusive license
- Recordation establishes a public record of the contents of the transfer or document
- Some courts have held that a security interest in a registered work must be recorded with the U.S. Copyright Office in order to perfect the creditor's interest.
- Recordation of a document in the Office may provide the advantage of “constructive notice,” a legal concept meaning that members of the public are deemed to have knowledge of the facts stated in the document and cannot claim otherwise. Section 205 of the Copyright Act says that recordation of a document in the Office gives all persons constructive notice of the facts stated in the recorded document, but only if the following two conditions are satisfied:
- The document or material attached to it specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be revealed by a reasonable search under the title or registration number of the work; and
- Registration has been made for the work.
In short, all of these benefits towards the owner are meant as protection against any kind of dispute or conflict around ownership or usage of transferred work(s) whether illicit or not.
Are there any requirements for recordation?
Yes, there are four requirements laid out by the Copyright Office.
- Have an original signature (or proper certification if submitted as a photocopy);
- In cases where the original documents is unavailable and an official certification is not available either a sworn certification in necessary. A sworn certification has to communicate that the attached duplicate is a true copy of the original signed document, this document must be signed by one of the parties or an authorized representative of that person (e.g. Power of Attorney). A notary or other person with the power to administer oaths must issue this sworn certification.
- Be complete by its own terms;
- A document that contains a reference to any schedule, appendix, exhibit, addendum, or other material as being attached or made a part of it will be recorded only if the attachment is submitted for recordation with the document or if the reference is deleted by the parties to the document.
- Be legible; and
- The document must be easily readable and able to be photocopied without significant or detrimental changes to the original texts, specifically in terms of readability.
- Be accompanied by the correct fee.
- Multiple title documents will be bundled together with one fee unless the documents differ on issues, chapters, installments,
- The basic recording fee is $105 if only one legal transaction and one title are involved.
- If more than one legal transaction is contained in the document, then the fee is $105 for each.
- The $105 fee covers the first title contained in a document, but there is a charge of $35 for each set of 10 or fewer titles beyond the first title
With all of these included in a document of your choosing, your copyright transfer will be officially recorded with the Office.
Conclusion: Is it all worth it?
Yes, granted it will take more effort and money, but the peace of mind knowing you have officially recorded the transfer with the Copyright Office is great. In the event that a dispute arises between the owner and someone claiming to be the owner having the official documentation and recording will make the legal process much easier and hopefully less time-consuming.
Blog written by Tomas Braly - Texas A&M Graduate.
Contact a California Copyright Law Firm
We have offices in San Diego, Newport Beach, Santa Monica, and the Bay Area (San Francisco). We can be reached at (877) 276-5084 or through our email contact form. We can help with copyright license, assignment and transfers issues including arbitration, mediation and federal court litigation. We have appeared in over 100 federal court cases.