Transfer of Copyright
As a business owner, you worked hard to create original work and content. You policed copyright infringements and grew your brand. Maybe you even grew your initial creative work by creating spinoffs like derivative works. Now, you want to monetize your copyright ownership by transferring it to a new owner. That new owner could be another small business or person. You can transfer your rights for a fee.
This article will help walk you through how to handle the transfer of copyright ownership and discuss some common business law pitfalls to avoid when drafting your transfer.
What Is a Copyright?
Copyrights are personal property rights that give the copyright owner control over the use and transfer of the copyrighted work. Copyrights are important because they allow an author to create original works without the fear of later being stolen by another author.
Although registering your copyright makes it much easier to defend your copyrighted works, it is unnecessary. Copyright law protects the work upon its creation. There are instances where an author may want to transfer some or all of their copyright to another person or entity.
A copyright owner's exclusive rights (either in whole or in part) can be transferred to another party. It must be in writing and signed by the copyright owner. An authorized agent of the copyright owner (such as an attorney or business associate) can also sign the writing. However, a written agreement is not required if the owner is transferring nonexclusive rights.
Who Owns a Copyright?
It may sound silly to question who owns a copyright, but it is more complicated than you think. Usually, the person or small business who is the work's author owns the initial rights to the copyright. This also extends to collective works, though there are limitations. The owner may be an individual, sole proprietorship, limited liability company, nonprofit, partnership, or corporation.
If you are part of a company with multiple members, you should review your operating agreement to ensure you can transfer copyright interests. You may need to get a vote from your voting members and issue a companywide resolution before moving ownership rights. You will need to ensure the appropriate company member signs the agreement.
When an employee creates a creative work during their employment, their employer owns the copyright. This is a work made for hire.
If you submitted a copyright registration for your creative work under a business name, that business owns the copyright. This is important to know when you draft a transfer of copyright ownership agreement. Your company, and not you individually, owns that work. No one member of a company, even a sole member limited liability company, has a personal interest in the work.
What Can a Copyright Holder Do With Copyright Ownership?
You must have a personal interest to transfer your property rights to something you own. This extends to copyright. A copyright holder can:
- Reproduce the work
- Sell the work
- Perform the work in public
- Display the work
- Sue for copyright infringement but not for fair use
How To Find a Copyright Assignee
You can find a copyright assignee in a few different ways. Typically, the business owner or business will approach you. You could also attend networking groups in your industry to find a potential assignee. Sometimes, copyright assignments happen with pre-existing relationships. You could approach someone.
Types of Copyright Assignment
Copyright assignments are transfers of rights. A copyright holder can assign their rights in their creative works in two ways:
- Whole: A whole assignment is an exclusive license to the copyright. This is a transfer of the entire copyright ownership to a new owner. The old owner does not retain any property rights to the copyright.
- Partial: This is a partial assignment of the copyright property rights to a new owner. It is typically for a limited time.
Some copyright ownership is passed down to heirs through wills.
How To Transfer a Copyright
The U.S. Copyright Office does not have an official form for transfers of copyrights. Contracts handle these transfers or assignments. There is no requirement that the assignee and copyright owner draft an agreement.
However, you should consider recording the transfer with the United States Copyright Office. While recording the transfers with the Copyright Office is not required for a valid transfer, it can provide legal advantages. It puts third parties on notice that there is a new copyright holder. It may also be required to validate a transfer against a third party down the road.
While you may be able to find an online template for copyright transfers, it would benefit you to find a lawyer who focuses on small business and copyright law instead. Copyright assignment hinges on federal law. The assignment agreement hinges on contract law, and each state has its own rules.
How Can You Tell if a Copyright Is Transferred?
There are two ways to determine if a copyright has been transferred from one person to another.
- Review the public record copyright registration certificate issued by the Copyright Office.
- Research and find a transfer or assignment agreement.
Can You Terminate a Transfer of Copyright Ownership?
Some copyright assignments cannot be terminated. These limitations are:
- Work made for hire
- Assignments made in wills
- Assignments made by another person if the author is still living
- Assignments made by someone other than certain heirs if the author is dead
An author who has transferred a copyright to another party can reacquire their rights after a certain number of years by terminating a transfer. The process of terminating and reclaiming copyright is complex. The rules to do so depend on when the work was initially published. The current law allows termination of transfer under certain conditions 35 years after the copyright transfer. Current law doesn't require a renewal claim unless the work was already in the initial term of protection when the law changed.
To terminate an assignment or lease, you must serve a written, signed notice of termination on the assignee. You'll also need to send a copy to the U.S. Copyright Office for recording. You can review the U.S. Copyright Office's public records to see any terminations.
Getting Legal Advice on Copyright Assignment
Copyrights and intellectual property law are challenging to understand. If you're interested in a copyright transfer as the copyright holder or an assignee, it's important to get a legal opinion. A copyright lawyer can give legal advice, answer some intellectual property FAQ, and ensure you have a valid transfer.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.