Copyrights and Estates

Lee-ford Tritt(Assistant Professor of Law, University of FloridaFredric G. Levin College of Law) has published his article, Liberating Estates Law From the Constraintsof Copyright, in 38 Rutgers L.J. 109 (2006).

Here are his conclusion and recommendations:

In 2013, copyright authors willbegin to feel the full impact of the unintended destructive nature oftermination rights. Despite the belief among some copyright scholars that theconflict between copyright law and testamentary freedom no longer exists, theestate-bumping effects of termination rights will soon be at hand. As a result,copyright authors will either be severely limited in creating efficient andeffective estate plans or will unknowingly execute estate planning instrumentsthat may be subject to the nullifying effects of estate-bumping. Either resultis unacceptable.

The copyright code can be minimallyrevised to reconcile the conflict between copyright law and estates law, whilefurthering the rationales for termination rights and testamentary freedom. Thetheory behind termination rights and the theory behind testamentary freedom arenot naturally at odds- both have the goal of maximizing the value of property.Termination rights are intended to grant authors a second chance to profit fromtheir works after an original transfer of copyright. In essence, the goal is toincrease the profitability from copyrights, not limit donative transfers. Theproblem is that termination rights, with their corresponding statutory class ofsuccessor heirs, cast too large a net. The provisions are drafted so broadlythat termination rights apply to all transfers, whether for the author’s profitor not.

The copyright code can be amendedto decrease the conflict between copyright law and testamentary freedom in twoways, both having the same effect. This can be accomplished without underminingthe reasons for creating reversionary rights for authors in the first place.First, the copyright act provision which already specifically extinguishestermination rights (of the statutory heirs) for copyrights transferred by Willcould be expanded to extinguish termination rights for transfers of copyrightsby any other Will-substitutes, testamentary substitutes, or donative transfers.Second, the copyright act could be amended so that the statutory heirs can onlyexercise termination rights regarding copyrights transferred for profit or forbona-fide business purposes. Either amendment preserves the basic copyrightprinciple that authors should have a second chance to profit from their works.These amendments focus on reversionary rights after an author’s death; theamendments will respect more fully the author’s testamentary freedom. Absentsuch amendments, the current copyright act will soon herald a new era ofestate-bumping that unwittingly frustrates and diminishes the liberty interestsof copyright authors.