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Archiver > COPYRIGHT > 2002-11 > 1037777377


From: Cliff Lamere <>
Subject: Re: [COPYRIGHT] Who Owns Copyright on Very Old Letters /was"Old letters pub...
Date: Wed, 20 Nov 2002 02:33:22 -0500
References: <158.178d7590.2b085b11@aol.com> <00a301c28de4$6cc98040$1ec3a2d8@oemcomputer> <5.1.0.14.0.20021118215056.032e6390@pop3.norton.antivirus> <5.1.0.14.0.20021119201731.0279ac40@pop3.norton.antivirus>


Pat,

You say that you disagree with one or more of the three ideas that I mentioned (and that you quoted), but you don't say which one(s).

My three sentences condense to these ideas:
1) Since 1978, a living joint owner of a copyright can only give up his/her share of a copyright if it is done in writing.

Source: Stephen Fishman in "The Copyright Handbook, How to Protect & Use Written Works" (chap. 6:2) says "A transfer of copyright ownership rights must be in writing to be valid."

2) Nobody would have done that with letters passed down through several generations of ancestors.

Thousands of attics have old letters. It would be very rare that the letters passed down from generation to generation would have been in a family that realized that the letters were copyrighted. Not only that, to disagree with my statement you would have to believe that that the descendant generations all knew that they shared in those copyright rights, and that the people in those generations signed written copyright releases.

3) Therefore, I believe that *all* descendants of the letter writer still share in the copyright of the Civil War letters.

Maybe you disagree with this statement.

You said, "I respectfully disagree. A copyright holder *may* transfer some or all of
his copyrights during his lifetime. However if he did not, then upon his
death, they are transferred according to will, or if he dies intestate,
according to the laws of inheritance in the state of residence."

That doesn't disagree with anything I said about "a living joint owner of a copyright". I said that such a person could transfer their rights as long as it was in writing. Your second sentence is interesting in that it supports my conclusion that all [or at least a lot of] descendants own the copyright. It would be a rare will that mentioned the copyright present in some letters. Therefore, because of state inheritance laws, the copyright may have passed unnoticed from the writer equally to all of the writer's
offspring. The copyright may have been passed to the descendants in a statement like, "and all the rest of my property shall be divided between my children, share and share alike." Or, in the case of probate, even though the copyright was not mentioned, it may have been passed to the children without the county officials knowing it was being done, or the children knowing that they had received it.

Your quotes from "Copyright Basics" don't disagree with anything I said. They support my position stated in the previous paragraph. Then you say:

"At any time during the course of years, the "farm" might have been left to
a son, and the "personal property" left to a daughter, for example. At
that point, the son would no longer have an ownership claim to the letters."

An excellent point. The son has no claim on the copyright.of the letters, since the copyright is personal property. You have convinced me that not all descendants shared the copyright. I would have to amend my statement to say, "3) Therefore, I believe that *all* descendants of the letter writer, still share in the copyright of the Civil War letters *except those denied a share because of exclusion in a will*."

The son's heirs were excluded in your limited scenario of a two-child family and a specially worded will that excluded one of them. In the scenario I gave, there were eight children in the family. So, even if you eliminated half of them, there are still plenty left to inherit the copyright. The letters and copyright would not have been mentioned in the will, but the copyright would have been inherited nevertheless. It appears that it would not matter who possessed the actual letters.

Of course, since so many of the early wills were never probated, there is may be no record of the will. If the will (or a copy or abstract) is no longer in existence, there would be no evidence that a certain branch of the family had been excluded. In that case, the branch would have to be included as heirs of the copyright, I believe.

You said of this two-child family, "If the owner of the letters [father] died intestate, once the heirs agreed to a division of property, only the heir receiving the letters would be the legal assignee."

The letters and the copyright are separate property, so I disagree based on statements above. If only 4 of the writer's children inherited the copyright, then all of their descendants in the next four generations up to me own the copyright, excepting where a will prevented certain children from receiving part of the copyright. Then, their heirs can't inherit what is not owned by their parent.

"Letters are usually in the possession of the recipient, not the author, and would have probably passed to the recipient's
heirs."

In my story, the Civil War soldier wrote them to his wife, so they passed down in the family of both the writer and the recipient.

In my real family line, WWI letters were found in the writer's attic. The letters had been written to his parents in whose house he lived until advanced age.

I still think quite a few people would own the copyright in the Civil War letters we have been discussing.

Cliff


Pat Asher wrote:

> At 07:06 PM 11/19/2002, you wrote:
> >Pat and Myra,
> >
> >Thankfully, the situation I mentioned was hypothetical. And thanks for
> >contributing to the discussion.
> >
> >A fact that may not have been expressed on the list before is that, at
> >least since 1978, a living joint owner of a copyright can only give up
> >his/her share of a copyright if it is done in writing. Nobody would have
> >done that with letters passed down through several generations of
> >ancestors. Therefore, I believe that *all* descendants of the letter
> >writer still share in the copyright of the Civil War letters.
>
> Cliff,
>
> I respectfully disagree. A copyright holder *may* transfer some or all of
> his copyrights during his lifetime. However if he did not, then upon his
> death, they are transferred according to will, or if he dies intestate,
> according to the laws of inheritance in the state of residence.
>
> Copyright Circular #1:
>
> "A copyright may also be conveyed by operation of law and may be bequeathed
> by will or pass as personal property by the applicable laws of intestate
> succession.
>
> "Copyright is a personal property right, and it is subject to the various
> state laws and regulations that govern the ownership, inheritance, or
> transfer of personal property as well as terms of contracts or conduct of
> business. For information about relevant state laws, consult an attorney."
>
> At any time during the course of years, the "farm" might have been left to
> a son, and the "personal property" left to a daughter, for example. At
> that point, the son would no longer have an ownership claim to the
> letters. If the owner of the letters died intestate, once the heirs agreed
> to a division of property, only the heir receiving the letters would be the
> legal assignee.
>
> A big however, however .... <g>
>
> It is quite likely that the letters never passed to a legatee eligible to
> claim copyright. Letters are usually in the possession of the recipient,
> not the author, and would have probably passed to the recipient's
> heirs. Unless the recipient/possessor was also the legatee of the author,
> they would not be eligible to claim copyright.
>
> Pat
>


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