Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included in the Heirs Property Reform Movement

• Publication year: 2022

Intellectual Heirs Property: Why Certain Musical Copyrights Should be Included in the Heirs Property Reform Movement

Austin Weatherly
University of Georgia School of Law

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INTELLECTUAL HEIRS PROPERTY: WHY CERTAIN MUSICAL COPYRIGHTS SHOULD BE INCLUDED IN THE HEIRS PROPERTY REFORM MOVEMENT

Austin Weatherly^*

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TABLE OF CONTENTS

I. Introduction...........................................................................................420

II. Background.............................................................................................421

A. What are the Problems in the Real Property Context? ...............................................................................................................421
B. What is the Uniform Partition of Heirs Property Act?422
C. What is an Intellectual Property Estate?........................423
D. The Copyright Act and Inheritance....................................424
E. Historical Racial Disparity in Copyright Law.................425

III. Analysis......................................................................................................426

A. Logical Basis for Heirs Property Reform in the Real Property Context.........................................................................426
B. Rhetorical Basis for Heirs Property Reform in the Real Property Context.........................................................................426
C. Applying the Purported Bases for Reform to the Copyright Context......................................................................427
D. Review of the Uniform Partition of Heirs Property Act ...............................................................................................................428
E. Applying the Uniform Partition of Heirs Property Act's Solutions to the Intestate Inheritance of Copyright Interests............................................................................................429

IV. Conclusion................................................................................................430

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I. INTRODUCTION

When a property owner dies without a will, their property is inherited according to the procedure outlined in the governing intestacy statute.¹ This post-death property-allocating process creates heirs property, a type of property ownership where "multiple owners obtain undivided, fractional interests in real property."²

Most intestacy statues stipulate that the inherited property is held via a tenancy-in-common,³ meaning each tenant holds an undivided interest in the property that does not terminate at death.⁴ Tenancy-in-common ownership has been characterized as one of the most unstable and vulnerable forms of property ownership.⁵ This instability is a large part of the reason that scholars and citizens believe that heirs property reform is necessary.⁶

The heirs property reform movement advocates for amending the statutory schemes that create heirs property.⁷ This reform movement has been promoted as a means of mitigating the racially disproportionate effects of heirs property in the real property context.⁸ One of the primary motivations for reform is the fact that heirs property issues can interfere with a property's wealth-generating potential.⁹ Given the racially disproportionate impact of heirs property issues,¹⁰

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this interference makes heirs property a meaningful contributor to the racial wealth gap in America.¹¹

There are undoubtedly significant differences between real property and intellectual property, but there are also similarities, particularly between real property interests and inheritable musical copyright interests. For example, copyright interests can be inherited pursuant to the same intestacy procedures that create heirs property.¹² The similarities do not end there, both musical copyright interests and real property interests are wealth-generating and wealth-building assets that can affect the racial wealth gap.¹³ Additionally, "[w]hen we think of private property, we think of three characteristics: the right to exclude others, title (ownership), and the right to collect income or rent off the property."¹⁴ In both the copyright context and the real property context, the conferral of the third characteristic listed is subject to a racial disparity.¹⁵ While heirs property issues in the musical copyright context may have a smaller impact on the racial wealth gap than heirs property issues in the real property context, that impact should not be denied.

II. BACKGROUND

A. WHAT ARE THE PROBLEMS IN THE REAL PROPERTY CONTEXT?

When multiple fractional owners hold their property interests via a tenancy-in-common, "each cotenant enjoys the same right to use and possess the . . . property."¹⁶ Because each cotenant retains an undivided interest, tenancy-in-common is seen as the most unstable form of property ownership.¹⁷ This instability has led cotenants who sell their fractional interests to receive "substantially discounted sales prices."¹⁸

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Additional issues arise from a tenant in common's unilateral right to file a partition action "requesting courts to order the entire properties forcibly sold."¹⁹ This right allows speculators outside of the family to acquire a fractional property interest and force a partition sale.²⁰ Speculator intervention is a particularly strong risk because many families who own heirs property do not fully understand the legal rules governing tenancy-in-common ownership.²¹ Further compounding the issue, partition sales often depress the value of the auctioned land, which can allow speculators to "acquire the property for a price well below even the property's forced sale value."²²

In many cases, it is not plausible or possible for familial fractional owners to pool their money together and purchase their land at the partition sale. "[M]any heirs property owners are 'land rich but cash poor,' in that they do not have other substantial liquid assets (or tangible assets for that matter) that they can use . . . to bid effectively at a partition sale."²³ This same reality makes forced partition sales especially devastating for poorer heirs, because the fractional property interests they lose often constitute a substantial percentage of their overall wealth.²⁴ Additionally, it is worth noting that for many familial heirs, the effects of land loss are not purely economic—often, heirs must also confront the loss of ancestral lands.²⁵

The results of heirs property cut at the very heart of property ownership; that is, the ability to leverage property and the power to sell it — both of which are fundamental to building wealth.²⁶ Given the racial disparity in the existence of heirs property, it follows that heirs property issues are a contributing factor to the growing racial wealth gap in the United States.²⁷

B. WHAT IS THE UNIFORM PARTITION OF HEIRS PROPERTY ACT?

The Uniform Partition of Heirs Property Act ("UPHPA") has emerged as a substantial source of heirs property reform. This piece of uniform legislation was

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approved by the Uniform Law Commission in 2010 and subsequently approved by the American Bar Association for adoption by the states in 2011.²⁸

The [UPHPA] establishes a hierarchy of remedies that both reinforces the property rights of certain tenancy-in-common property owners who traditionally have been most at risk of losing their property at a forced partition sale and significantly improves the ability of these tenancy-in-common property owners to maintain their real-estate-based wealth should a court order such a forced partition sale.²⁹

C. WHAT IS AN INTELLECTUAL PROPERTY ESTATE?

Intellectual property estates are aggregations of inheritable intellectual property interests. In the copyright context, estates are possible because The Copyright Act of 1976 ("Copyright Act") grants copyright protection for the life of the author and the 70 years that follow.³⁰

The United States follows the utilitarian justification of intellectual property rights.³¹

Under the utilitarian approach, . . . copyright law provides an economic incentive for authors to invest time and energy into the creation of original works of authorship; by prohibiting the unauthorized copying and distribution of an author's work, copyright allows authors to recoup the costs of creation and grow the stock of creative works available for public consumption.³²

This underlying author-driven policy begs the question of whether the same policy can be used to support the ownership claims of intellectual property

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heirs.³³ Despite reservations about the propriety of intellectual property estates, they have continued to grow overtime.³⁴

D. THE COPYRIGHT ACT AND INHERITANCE

Section 201 of the Copyright Act provides that, "ownership of a copyright may be transferred 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."³⁵ This would seem to make the inheritance of copyright interests an open and shut case, but two other provisions of the Copyright Act of 1976 tell a different story.

First, regardless of whether the copyright author dies intestate or with a will, Section 304 of the Copyright Act expressly limits the inheritance of the renewal right to "those falling within the author's statutory successor class."³⁶ In effect, Section 304 "mandate[s] that upon certain conditions, copyright, a species of intangible personal property, must stay in the family."³⁷

Second, Section 203 of the Copyright Act similarly interferes with the copyright author's testamentary freedom. Under Section 203, in certain circumstances, copyright owners can terminate a past agreement to license or sell their copyright interest.³⁸ Congress created this termination right "because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has...