Copyright Transfer by Operation of Law

[1935]

In Tennessee, if a person has an unregistered copyright, and they pass away intestate (with heirs - wife and kids), what must be done to transfer the copyright?

USC Title 17 Chapter 2 §204 says:
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

It's my understanding (correct me please if I'm wrong or misunderstanding) that intestate death (in Tennessee) results in the transfer by "operation of law" to the heirs, similar to how joint tenancy with right of survivorship works.

So does this mean that the heirs already legally hold the copyright and can transfer it? Or does the estate (consisting only of the copyright) have to be probated?

 

[adjusterjack]

The law of intestate succession tells you the who, not the how.

The estate owns the copyright.

The executor or representative of the estate that was acknowledged by the court would likely have to include the copyright in probate along with any other estate assets.

And would have to execute a document (instrument of conveyance, or a note or memorandum of the transfer) conveying the copyright to the heirs according to intestate succession.

Prior thread:

(1) What happens to copyright after death? | Forum.FreeAdvice.com

Quoting Zddoodah from that thread.

The copyright is owned by your grandmother's estate. Was her estate probated when she died? If so, who was the executor/administrator of the estate? That's the only person who can transfer ownership of the copyright.

Read the bolded. I don't think that question was adequately answered.

Answer it here.

 

[1935]

I didn’t want to further hijack that other thread (didn’t mean to in the first place) so that’s why I started this one.

His estate wasn’t probated, since all the real property was in the wife’s name, and the only thing actually in the estate would be the [unregistered] copyright. (The wife thought they had everything covered but didn’t realize about the copyright.)

So it sounds like it would indeed need to go through probate just for the copyright, correct?

 

[quincy]

I didn’t want to further hijack that other thread (didn’t mean to in the first place) so that’s why I started this one.

His estate wasn’t probated, since all the real property was in the wife’s name, and the only thing actually in the estate would be the [unregistered] copyright. (The wife thought they had everything covered but didn’t realize about the copyright.)

So it sounds like it would indeed need to go through probate just for the copyright, correct?

Copyright ownership passes to heirs just like any other property - by testate succession when there is a will or by intestate succession when there isn’t a will.

https://law.justia.com/codes/tennessee/2021/title-31/chapter-2/

 

[quincy]

A surviving spouse (generally) would be the one who inherits the copyrights through intestate succession - and this surviving spouse can record the transfer of copyrights (whether the transfer was by will or by intestate succession) with the US Copyright Office, noting that the copyright transfer was “by inheritance.”

https://www.copyright.gov/eco/help-claimant.html

 

[adjusterjack]

A surviving spouse (generally) would be the one who inherits the copyrights through intestate succession

I don't like to assume anything but I'm guessing that grandpa died before grandma.

(A guess is not an assumption.)

 

[quincy]

I don't like to assume anything but I'm guessing that grandpa died before grandma.

(A guess is not an assumption.)

You are guessing that a grandmother and grandfather are involved. This is not the “grandma’s cookbook” thread but an entirely different thread.

 

[1935]

This is not the “grandma’s cookbook” thread but an entirely different thread.

Correct—I just used “grandma” as an example in the other thread to try to keep it relevant to the OP’s question there. But when I realized the situation I’m dealing with wasn’t as similar to that one as I thought is when I knew I should create a new thread. (I should have done that to start rather than confusing everyone, and I apologize for that.)

The man passed away, leaving wife and two [adult] kids. Nothing was done with the estate as far as probate. So the only asset in the estate is the unregistered copyright.

 

[1935]

A surviving spouse (generally) would be the one who inherits the copyrights through intestate succession

I think in Tennessee it’s divided between the wife and two children. They all three want to transfer copyright to a third party.

- and this surviving spouse can record the transfer of copyrights (whether the transfer was by will or by intestate succession) with the US Copyright Office, noting that the copyright transfer was “by inheritance.”

https://www.copyright.gov/eco/help-claimant.html

That link is very helpful—still seems confusing to me though as far as when it mentions by ”EITHER in writing OR by operation of law”.

They don’t want to go through the whole probate process just for the copyrights if it’s possible to avoid it. But in hindsight obviously these things should have been taken care of as part of estate planning (of which there wasn’t really any).

Also, when the wife and kids record the transfer with the US Copyright Office, does it need to be done twice—once for receiving it from the deceased, and then again for the transfer to the third party?

And does that filing of transfer also register the copyrights, or would that need to be done separately?

 

[quincy]

Correct—I just used “grandma” as an example in the other thread to try to keep it relevant to the OP’s question there. But when I realized the situation I’m dealing with wasn’t as similar to that one as I thought is when I knew I should create a new thread.

I had no problem following along with your questions in the other thread - and your questions were similar to the ones asked by “HotelGM” so adding them to his thread made sense - but I appreciate that you started a thread of your own to address your more specific concerns.

However an estate is settled, the copyrights that were held by the deceased can be inherited and the heirs (once determined) will become the new owners of the copyrights. This transfer of rights can be recorded with the US Copyright Office.

There is no requirement for either copyrights or transfers of copyrights to be recorded with the US Copyright Office but registering copyrights and recording transfers of rights can be important if/when disputes over ownership arise.

 

[quincy]

Perhaps to clarify: “By operation of law” in the context of copyright transfers after the death of the original copyright owner when there is no will means the transfer of rights through the laws governing intestate succession.

In other words, when there is no will or other written document designating the transfer of copyrights in a deceased person’s work to a named individual or individuals or entity or entities, the copyrights are transferred to the deceased person’s heir or heirs. In your described situation, the copyrights of the deceased husband are transferred by operation of law to the wife and kids. They become the new copyright owners with all of the rights previously held by the original copyright holder.

 

[1935]

So the next question becomes figuring out the proper way to settle the "estate". In Tennessee we have a thing that lets an affidavit of small estate be filed instead of the full probate probate process (if the total value is less than $50,000). I suppose they could do that to settle it.

But that means that before that would be valuation---is there any standard that defines a normal way to value copyrights? (Particularly ones that have never been formally published and received revenue previously.)

 

[quincy]

So the next question becomes figuring out the proper way to settle the "estate". In Tennessee we have a thing that lets an affidavit of small estate be filed instead of the full probate probate process (if the total value is less than $50,000). I suppose they could do that to settle it.

But that means that before that would be valuation---is there any standard that defines a normal way to value copyrights? (Particularly ones that have never been formally published and received revenue previously.)

The World Intellectual Property Organization (WIPO) offers the following on valuing copyrights and other intellectual property:

https://www.wipo.int/sme/en/ip-valuation.html

 

[1935]

Ah, that is invaluable---thank you!

 

[quincy]

Ah, that is invaluable---thank you!

You’re welcome, 1935. Thanks for the thanks.