What happens to the copyright of a publication whose author dies and
leaves no heirs? I'm interested in reprinting (online) a book written
in the 1980s by a Louisiana Catholic priest. It's a valuable book, but
its only publisher has priced it high enough that it gets minimal
circulation. I'd like it to reach as many people as possible, free
online.

The author died a few years ago, obviously leaving no heirs. Assuming
he did not leave a will specifically passing that copyright on to an
individual or organization, does it pass into the public domain?

Hello crabwalk!

Alas, I'm afraid that unless the author specifically willed his
copyright to someone, and unless they're willing to grant you reprint
rights, it's going to be a very long time until you can reprint this
book.

From Brad Templeton's superb essay, A Brief Intro to Copyright:

"Some legal basics
Under the Berne copyright convention, which almost all major nations
have signed, every creative work is copyrighted the moment it is fixed
in tangible form. No notice is necessary, though it helps legal cases.
No registration is necessary, though it's needed later to sue. The
copyright lasts until 50 years after the author dies. Facts and ideas
can't be copyrighted, only expressions of creative effort."

A Brief Intro to Copyright
[ http://www.templetons.com/brad/copyright.html ]

Brad also discusses copyright myths, and addresses issues of "Public
Domain" here:

"Nothing modern is in the public domain anymore unless the owner
explicitly puts it in the public domain(*). Explicitly, as in you have
a note from the author/owner saying, "I grant this to the public
domain." Those exact words or words very much like them."

10 Big Myths about copyright explained
[ http://www.templetons.com/brad/copymyths.html ]

If the author did not specifically write down or publish somewhere
that he was placing his book in the public domain, he (or whoever he
may have left the rights to, most likely his publisher) retains
copyright control for 50 years after his death.

For more on Copyright, you can find a detailed FAQs and information
through the following links:

Copyright FAQ
[ http://www.aimnet.com/~carroll/copyright/faq-home.html ]

United States Library of Congress
[ http://lcweb.loc.gov/copyright/ ]

The Electronic Frontier Foundation's Intellectual Property Law Primer
[ http://www.eff.org/pub/CAF/law/ip-primer ]

Kindest regards,

missy-ga

---

Request for Answer Clarification by crabwalk-ga on 04 Jun 2002 17:50 PDT

Hi Missy,

Thanks for answering, but this doesn't quite get at what I'm looking
for. I understand that copyright lasts long after an individual's
death, through the author's heirs or whomever the copyright is left to
in a will or estate proceeding. (As you put it, "whoever he may have
left the rights to, most likely his publisher.")

Yes, obviously, if he left the copyright to someone like his
publisher, I can't reprint anything without the copyright holder's
permission. But I'm asking about a scenario in which he left no heirs
and did not specifically leave his copyright to any individual or
organization. In other words: priest writes book, dies without heirs,
leaves copyright to no one.

See, here's my guess: I have difficulty understanding how publishing
something after an author's death could be a copyright violation if no
one actually owns the copyright to the work in question. After all,
copyright is a property right, and if no one owns the property being
violated, it doesn't strike me that it would be a crime.

Anyway, as I said, I'm looking for a more specific answer for when the
copyright is not explicitly passed on to anyone. Thanks again, and I'd
love some additional clarification if possible.

Best,
crabwalk

---

Clarification of Answer by missy-ga on 04 Jun 2002 20:39 PDT

The answer has been clarified in the comment below.

Hello again!

I'm sorry crabwalk, but the law cited above is actually quite
specific, and there are no loopholes, save the author either
*explicitly* signing his work into the public domain, or *explicitly*
willing his copyright to an heir, trustee or company.

The author still owns his copyright for the prescribed period after
his death - unless he has *explicitly* assigned it elsewhere prior to
his demise, regardless of of whether he leaves it to anyone, or to no
one at all.

Here it is again, right from Uncle Sam himself:

Copyright Law of the United States of America
and Related Laws Contained in Title 17 of the United States Code
Circular 92

"(a) In General.-Copyright in a work created on or after
January 1, 1978, subsists from its creation and, except
as provided by the following subsections, endures for a
term consisting of the life of the author and 70 years
after the author's death."

[ http://www.copyright.gov/title17/92chap3.html#302 ]

(I'll note here that Mr. Templeton's essay cited in the initial answer
above was written prior to the October 1998 enactment of the Sonny
Bono Copyright Extension act, which amended copyright duration from 50
years after an author's death to 70.)

To summarize:

Under United States Copyright Law, and international provisions under
the Berne Convention, an author retains copyright:

1)  from the moment the work is made tangible (written down, recorded
on tape, published on the internet) until 70 years after his/her
death.

2)  *regardless* of whether the author dies with or without heirs

An author may sign his/her works into the public domain *only by
explicit consent*.  S/he *must* explicitly state "I give this work to
the public domain."

An author's copyright may be transferred to an heir, a trustee or a
corporation, but only by contract:

"TRANSFER OF COPYRIGHT

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.

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. For information about relevant state
laws, consult an attorney."

US Copyright Office - Copyright Basics - Transfer of Copyright,
circular 1
[ http://www.copyright.gov/circs/circ1.html#toc ]

If the copyright is not explicitly passed on to anyone, *no one* may
have it until the author has been dead for 70 years.  It does not
automatically revert to the public domain.

Typically, authors without heirs sign ownership of their copyright
over to their publishers as part of their publishing contract, so that
copyright reverts to the publisher on the author's death.

If you feel you have a legitimate claim to the work in question, your
best option would be to contact an attorney in your area who
specializes in copyright issues.  You'll need to show good cause why
you should be granted the copyright, however, and it can be (and
usually is) a difficult fight to wrest copyright from its current
holder.


Regards,

missy-ga

An interesting procedural question would be: "under a scenario where
the author left no heirs and had not assigned the rights under his
copyright, who would have *standing* to bring a suit?"  Seems the
answer would be no-one. It would be a cause of action existing without
a plaintiff.

Regards, 

Tom

Short Answer:  

If there are no heirs and no will, the state probably takes over
ownership of the copyright.  In any case, however, this answer doesn't
really matter to you since the publisher of the work quite probably
has an exclusive license to publish the work (at least in the U.S.)
and in normal cases, that license is not terminated just because the
author died.  So if you republished the work, the original publisher
would have standing to sue you (just as it did before the author
died.)

Longer Answer: 

We live in a world where virtually EVERYTHING (except maybe the air
and the oceans) is owned by some person, corporation, government or
other entity, at all times. Copyright is the same.

The answer to your question is that a copyright owned by an author who
dies and leaves no natural heirs (i.e. spouse, children, siblings) and
no will is handled just like any other piece of property in such a
situation and will likely end up being owned by the state of which he
or she was a citizen at the time of death.

Most (in fact, I would assume all) states have what are called
"escheat" statutes that provide for exactly this situation. If you die
without any natural heirs and without any sort of a will, any property
you own (a house, cash, a comb, ice cream, mutual funds, your
grandmother's ashes, Disneyland, the family Bible, the family
business, the family silver, your pet ostrich, etc.) will "escheat" to
the state, which simply means that the state will take over ownership
of the property.  There is usually some period of time during which an
unknown heir may show up to take ownership back from the state.  But
eventually, if no one shows up, the government grabs it for as long as
the property exists (so for land, that's probably forever, for your
ostrich and your copyright, a more limited time.)

So, an author's copyright could end up escheated to the state
government.  The state will then have standing to file infringement
actions just as the owner of any other copyright owner (or exclusive
licensee) is able to do. The state can also license rights in the
copyright (but not, of course, any rights that have already be
exclusively licensed to a third party), or choose to sell it outright
to someone else (again, subject to any existing licenses.)

By the way, it's not directly relevant, but to correct a statement
above, the term of US copyright for works created on or after 1/1/78
was extended a couple of years ago to the life of the Author plus 70
years (not 50).  However, the Supreme Court has agreed to hear a case
challenging this last extension.