Some people eat, sleep and chew gum, I do genealogy and write...

Wednesday, January 14, 2015

And when I die... Copyright after death

I had an interesting question posed by a reader. This was in conjunction with stories and memories posted to the Memories section, but it applies to all original content posted online on any website. What happens to the copyright when the person dies who created the content? From a legal standpoint the answer is quite simple. Copyright is a personal property interest. This means that any copyrighted works become part of the deceased person's estate and pass to his or her heirs.

Copyrights fall into the category of incorporeal property such as stocks, bonds, contracts, and patents. The process of inheriting a book authored by the deceased under a contract with a publisher is a good starting point. The existence of the book is probably well known to the potential heirs. The royalties or other residual rights, i.e. movie rights, reprints, other commercial byproducts, are likely being handled by deceased as a business interest. But what about a story or poem posted online? The person who authored the work may not be aware of its value, if any and the potential heirs may not be aware of its existence. Nevertheless both works, the published book and the online story, are equally protected under the copyright laws of the United States.

As another example, all of the thousands of blog posts I have written over the past few years are completely protected by copyright and my heirs would have all of the protected rights to their content. In thinking this through, I see a list of potential considerations:
  1. Is the work such that it has commercial value?
  2. Is ownership and authorship of the work clear and documented?
  3. Has the work passed into the public domain in any way?
  4. Is the work subject to some other claim of ownership or license?
  5. Do the heirs know about the existence of the work?
  6. Can the copyright interest be practically pursued and defended?
  7. If the work is online, is there a practical way to recapture and preserve the work?
There are probably any number of additional considerations that need to be reviewed. The heirs may also be faced with a valuation issue for estate tax purposes. From a purely genealogical point of view, claiming a copyright for family histories and related works often defeats the purpose of the work in the first place. Very, very few privately or personally published family history books or other works even make back the cost of publication. They are usually highly subsidized by the "rich relatives" or published at great sacrifice by the author. Claiming a copyright interest in these cases is somewhat futile. 

As an example, my Great-grandmother authored an 800+ page book about her family and included information about her husband's family. Although not a perfect example of scholarship, the book has a great deal of value to the family. As part of the book, she took hundreds of photographs. I inherited both the originals of the photographs and the physical copyright to the book. Yes, I have the actual copyright registration document in my possession. The book is:

Overson, Margaret Godfrey Jarvis. George Jarvis and Joseph George De Friez Genealogy. Mesa?, Ariz: M.G. Jarvis Overson, 1957.

The book has no commercial value and no one is going to be interested in making a movie about a book full of family history. So why does the copyright matter. However, copies of the book are no longer available to members of the family, in fact, very few family members now know about the existence of the book. In this context, the ownership of the copyright is meaningless. I gave FamilySearch the right to digitize the book and it is now online for any of the family members to read and use for free.

In reality, since the book was published in 1957, even though there was a copyright registration, the copyright was not renewed and has expired. In fact, the book is legally in the public domain. But any one involved with current copyrighted material should carefully review the law. In the U.S. copyright protection is presently automatic for all original works and extends for different periods of time depending on the circumstances of publication.  See Copyright Term and the Public Domain in the United States: Peter Hirtle, Cornell University Library Updated for 2013.

The best way to approach a potential inherited copyright issue is to make sure you and your heirs are well aware of the value and the potential ownership of the copyrighted material. If you need assistance, consult a qualified intellectual property lawyer. The average estate planning or probate lawyer will not know much, if anything, about copyright law.

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