Transfer of Copyright Ownership

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 52

Copyright, like other forms of tangible and intangible property, can be transferred inter vivos or upon death from the author or initial copyright owner, and transferred again. This basic principle is affirmed in section 201(d)(1), which provides: "The ownership of a copyright may be transfeired in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession."

Under prior law, courts developed an important distinction between an "assignment" of copyright, which carried the entire copyright to a person who then was known as the "proprietor" or owner of copyright, and a "license," which carried to another less than the entire copyright, for example, only the right to dramatize a novel or publicly perform a musical composition. It was generally said that copyright was "indivisible," in the sense that only one person at any given time could validly claim to "own" the copyright. The concept of indivisibility and the distinction between an assignment and a license were important under the 1909 Act, because only the name of the "proprietor" could properly be placed in the copyright notice (the insertion of the wrong name could thrust the work into the public domain) and only the "proprietor" could bring an action for copyright infringement.

The 1976 Act made a significant break from the past when it abandoned the concept of indivisibility of copyright ownership along with its more dubious ramifications. Section 201(d)(2) provides:

Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

Thus, a person who owns no more than an exclusive license to perform publicly a dramatic work or a musical composition (but not to make or sell copies) is nonetheless regarded as the "owner" of that right. It is that person who can properly bring an action for infringement of that particular exclusive right.94.

The Copyright Act refers to the conveyance...