Transferring a Copyright

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Each right granted under copyright is separate and divisible and can be transferred, licensed or otherwise granted to a third party who becomes the owner of copyright as to that specific grant.

EXAMPLE: Sean Arthur is the author of the novel, Dead Talk. He may transfer the rights of adaptation, reproduction and performance of his novel to a movie company for the exclusive right to make a motion picture. He may sell reproduction and hardcover publication rights to a book publisher. That book publisher may sublicense the paperback publishing rights to a subsidiary company. Mr. Arthur may assign the right to translate (an adaptation right) the work to a foreign publisher. These grants may be for the full term of the copyright or the grants may be for a limited time, after which the rights would revert to Mr. Arthur. Mr. Arthur may retain certain adaptation rights in case he wishes to create a sequel and he also may bequeath certain rights to his family in his will. All these grants flow from the initial bundle of rights acquired by Mr. Arthur when he created the novel. Anyone who acquires rights from Mr. Arthur is entitled to the protection and remedies available under copyright law.

Transfer By Written Agreement

The Copyright Act of 1976 specifies various types of transfers of copyright ownership. A transfer of copyright ownership is an assignment, mortgage, exclusive license, transfer by will or intestate succession any other change in the ownership of any or all of the exclusive rights in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.  Therefore, if an author grants an exclusive right to publish his novel, the publisher is an owner of copyright.  However, if the author grants nonexclusive rights of publication to two different publishers, then neither publisher is an owner of copyright.

Must Be in Writing

Generally, a transfer of rights can only occur when a copyright owner signs a written agreement transferring the rights.  This rule, established in Section 204(a) of the Copyright Act of 1976, states that requires that any assignment or exclusive license must be in writing and signed by the person granting the rights. There are exceptions to this rule, as will be discussed later, for example, when a person dies without a will or when bankruptcy is declared.

Distinguishing Between Assignment and Exclusive License

An assignment is a transfer of ownership interest. Traditionally, an assignment means that the copyright owner is transferring all of the interest in copyright to another party. If the copyright is viewed as property, then it is the equivalent of a final sale of the property.  Although the heirs of the assigning party (the "Assignor") may recapture rights (as discussed in the section on terminating transfers,) the assignment is not considered limited in time.

An exclusive license is a grant of one or all of the rights comprising copyright in such a manner that no other party will be granted a similar right.  Viewed in terms of property ownership, an exclusive license is similar to an exclusive lease. The arrangement may be limited as to time or location, and eventually, rights may revert to the licensing party. Under a nonexclusive license, there is no exclusionary quality. That is, other persons may acquire similar rights.  By way of example, if JamCo, a computer company, wanted to acquire all rights and become the permanent copyright owner of a computer program, they would seek an assignment.  If JamCo wanted to be the only distributor and manufacturer of a game, but only sought that right for a period of years, they would acquire an exclusive license.  If JamCo did not mind that other companies were distributing and manufacturing the program, JamCo would seek a nonexclusive license.

Record the Transfer

Although it is not a requirement of copyright law, it is prudent to record all transfers of ownership because such recordation provides constructive notice of the transfer and because the recordation may be necessary to establish jurisdiction in a copyright infringement action.  As noted, above, a transfer of ownership (transfer of exclusive rights, assignments, mortgage, etc.) must be in writing and notarization is recommended. In addition, nonexclusive licenses, if in writing, or other documents pertaining to copyright also may be recorded.

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