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Re: New 'Public Domain' Licence

On 6/8/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> On Wednesday 08 June 2005 05:57 am, Michael K. Edwards wrote:
> > If you truly wish to do so, you may strip your heirs, in your last
> > will and testament, of statutory termination rights, by the simple
> > expedient of ratifying an existing assignment of copyright to a
> > corporate entity run by the benevolent dictator of your choice.  You
> > don't even have to trust that benevolent dictator beyond the point at
> > which your work is first published under their copyright notice and a
> > sufficiently permissive license, as long as that license is contained
> > in an offer of bilateral contract such as the GPL.  (Unilateral grants
> > of license, with no return consideration, are terminable at will in
> > many jurisdictions irrespective of their ostensible term.)
> Sorry but this won't work either.  The statue is quite clear that the
> termination right is non-assignable, even through a will.  If you have a
> surviving spouse, children, or other "issue" then they will get the
> termination right under standard intestancy rules.  Even when all of those
> folks are dead, the termination right cannot be transfered by a will, it goes
> into the hands of your estate's executor.

(a) Conditions for Termination. — In the case of any work other than a
work made for hire, the exclusive or nonexclusive grant of a transfer
or license of copyright or of any right under a copyright, executed by
the author on or after January 1, 1978, otherwise than by will, is
subject to termination under the following conditions:

See that "otherwise than by will" part?  The termination right is not
assignable through a will, but a transfer by will is not terminable.

> > ....  Unless, of course, that person goes to the trouble of
> > setting up a corporate shell and handling the accounting properly to
> > substantiate a claim that his or her work was "made for hire" to begin
> > with.
> >
> > Current US law does not permit a 32-year-old man to make a promise of
> > eternal copyright license (with respect to a work not made for hire)
> > binding on his 69-year-old future self.  This is generally held to be
> > a liberty granted to independent authors and artists (and their heirs)
> > in recognition of both their courage and their improvidence.  It is
> > quite futile to protest this feature of the law, as it dates from 1978
> > and is easily circumvented (if you really want to) with a little
> > planning and competent legal advice.
> Yeah, don't know what you mean here...  I can't see how any amount of legal
> planning is going to avoid future-selves/heirs from exercising their
> termination rights.

Work-made-for-hire exception.  AIUI, that's how the pros in Hollywood
work around it -- anyone whose contribution to a film rises to the
level of "authorship" (especially screenplay writers) and hasn't
already been completed is expected to "work for hire" within a
corporate shell.  I don't know how they approach adaptations of novels
in which the copyright was originally held personally -- ask
Christopher Tolkien, maybe.

> p.s. I very much believe that all residences of a jurisdiction should be able
> to fully discuss the implication of the law and how it should be applied...
> but if it counts for anything, I am just finishing my 2nd year in law school
> having aced all of my IP course work.

It's always nice to have genuinely knowledgeable people (which I am
not) in the discussion.  :-)  You may be right about the "utilize"
language in 17 USC 203 (b) (1); I ought to track down the full House

- Michael

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