Wednesday, August 14, 2013
Andrea Farkas (2014 J.D. Candidate, Texas Tech University School of Law) recently published an article entitled, I'll Be Back? The Complications Heirs Face when Terminating a Deceased Author's Online Copyright Licenses, 5 Est. Plan. & Cmty. Prop. L.J. 411 (Summer 2013). Provided below is the introduction to her article:
In the 1930s, two high school students created a character with superhuman strength and abilities. In their youth and naivety, these two students exchanged Superman and all of their rights to the character to a corporation in return for $130.
In 2004, the Superman franchise was worth over one billion dollars. When Siegel and Shuster died, they were broke and alienated from the fortune generated by their character.
Thanks to copyright law reforms, however, the two authors’ heirs possess the legal ability to terminate a portion of those grants. The heirs have “another bite of the apple,” so to speak. “In the spirit of Siegel and Shuster’s character Superman,” the heirs exercised this right of termination in 1999 and “have persevered to regain the copyright granted in 1938.”
Fast forward to today. In a new digital world, naive authors and artists transfer their rights by millions through email, blogs, and social media networks like Facebook and Instagram. Not unlike the naive Jerry Siegel and Joe Shuster, who granted the rights to Superman to Time Warner (then Warner Communications) in 1933, millions of everyday citizens who lack bargaining power and legal finesse lose their valuable copyrights to online giants. However, the Siegels and Shusters of the digital world are not the only victims. The authors of online copyrighted material and their estate planners face complexities when planning digital estates, often leaving a superhuman challenge for an heir seeking to recapture the author’s work.
Many heirs are unaware that they possess such a right at all, not only because of complex user agreements or user naivety, but also because the very nature of certain online technologies, such as email, is still under debate. The Internet presents wide opportunities for exposure, allowing a previously unknown artist to create incredible contributions to the literary, visual arts, or musical industries and become discovered, much like Siegel and Shuster. Like Siegel and Shuster, many authors unknowingly agree to the terms of service prior to publishing such works online—terms of service that usually include provisions that grant or license to the website a user’s intellectual property rights, prohibit transfer or inheritance of accounts, or destroy the right to terminate the grant or license. Most people do not actually read the terms of service when they agree to use an online service.
This comment is divided into six parts. Part II explains the relevant federal copyright laws. This section explains what is subject to copyright protection, defines the right of termination, and explains how copyright law distinguishes between works created before and after January 1, 1978, and those works granted before and after the same date. Part II further explains which copyright-appropriate works are ineligible for reversion to the author or the author’s heirs. Part III examines the property law-copyright law dichotomy on the Internet. Part IV discusses the relevant terms of service that popular social media websites and email providers require in a user agreement. Part V explains why preserving the property rights of digital assets in turn preserves the intellectual property interests in the content. Part VI discusses state, international, and federal attempts (or lack thereof) to adjust law to technology’s rapid evolution. Part VII discusses how cybercrime statutes complicate legal and layman understanding of copyright law on the Internet. Finally, Part VIII explains why addressing these issues is important.