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Re: New 'Public Domain' Licence

On Wednesday 08 June 2005 11:56 am, Michael K. Edwards wrote:
> (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:

This section is not referring to transferring termination rights by will, it 
is referring to copyright assignment by will.

So, if I assign you my copyright in FOO via a will, then the assignment is not 
subject to termination.  However, it doesn't say anything about transferring 
the termination right by will.  So, if our intrepid Public Domainers really 
want to avoid having their heirs terminating licenses, they should assign all 
of their copyrights to the ether, and then arrange for their immediate death.  
Of course, I don't really think that will work under the law of wills...  nor 
could you forever GPL your work via a will, because the GPL does not assign 
the copyright.  Absent a clear assignment, your copyright will transfer via 
intestancy and end up in the hands of your heirs...  because someone's got to 
think of the children!

> 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.
> [snip]
> > > 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.

Yeah, maybe...  but the work-for-hire doctrine is tricky business.  You can't 
just declare something a work-for-hire, it is dependent on behavior.  I find 
it difficult to accept that most screenplays are done as a work-for-hire, 
because (if I understand the industry) the author pitches a screenplay to the 
production house.  Unless the screenplay writer is drawing a regular salary, 
working in house, and under the direction of the production house, it is 
unlikely to be considered a work-for-hire.

> 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
> Report.

Woah, someone saying someone else might be right on Debian-Legal!!!  I am 
shocking, amazed, and completely humbled.


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