Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement.
Under the 1976 Copyright Act,
|“||[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.||”|
Transfer in writing
Section 204 is intended “to protect copyright holders from persons mistakenly or fraudulently claiming oral licenses [or transfers].” As a result, Section 204 “enhances predictability and certainty of ownership — ‘Congress’s paramount goal’ when it revised the [Copyright] Act in 1976.”
Section 204(a) does not, on its face, impose any heightened burden of clarity or particularity in the transfer document. Nor is there anything in the legislative history of Section 204 which suggests that Congress envisioned that Section 204 would invalidate copyright transfer agreements if they contain language susceptible to multiple reasonable interpretations.
Nonetheless, some courts have understood Section 204(a) to impose requirements similar to that necessary to satisfy the statute of frauds. They have found that a writing is insufficient to transfer copyrights unless (1) it reasonably identifies the subject matter of the agreement, (2) is sufficient to indicate that the parties have come to an agreement, and (3) states with reasonable certainty the essential terms of the agreement.
Other courts have rejected such a requirement:
|“||The need for interpretation of a contract does not necessarily mean that there is a bona fide issue as to whether the contract is a writing for purposes of section 204(a). In most cases, there will be no doubt that the contract is a section 204(a) writing, and the only substantial issue will be contract interpretation.||”|
In copyright as elsewhere, "[t]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing." Where ambiguity persists in the language of a parties’ shared agreement concerning a copyright transfer, the transfer is not invalidated; instead, the court should look to parol evidence to construe the terms of the agreement.
Other forms of transfer
A copyright may also be conveyed by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.
Recordation of transfers
Transfers of copyright are normally made by contract. The Copyright Office does not provide forms for transfers, but transfers of copyright ownership can be recorded in the Copyright Office. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.
- 17 U.S.C. §204(a).
- Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 36, 217 U.S.P.Q. (BNA) 201 (2d Cir. 1982) (full-text).
- Konigsberg Int'l, Inc. v. Rice, 16 F.3d 355, 357 (9th Cir. 1994) (full-text) (quoting Community for Creative Non-Violence v. Reid 490 U.S. 730, 749 (1989) (full-text)).
- See, e.g., Pamfiloff v. Giant Records, Inc., 794 F. Supp. 933, 936 (N.D. Cal. 1992) (full-text) (citing Restatement (Second) of Contracts §131 (1981)).
- Jasper v. Bovina Music, 314 F.3d 42, 47, 65 U.S.P.Q.2d (BNA) 1207 (2d Cir. 2002) (full-text).
- David M. Nimmer & Melville B. Nimmer, Nimmer on Copyright §10.08 (quoting Tingley Sys. v. Healthlink, Inc., 509 F.Supp.2d 1209, 1216 (M.D. Fla. 2007) (full-text)).