Submission Date:
Question:
Many libraries/archives hold unpublished materials whose creators are deceased, but are still protected by copyright since copyright lasts 70 years after death.
If a library/archives lacks a deed of gift (or if the deed of gift doesn’t explicitly transfer copyright), can an heir transfer copyright or otherwise provide permission for the library to publish/digitize/etc? In NY, are copyrights automatically transferred to heirs when someone dies? What if there is no will?
Answer:
Many libraries do indeed have materials[1] that are unpublished, one-of-a kind, original works, such as photographs, letters, drawings, and recordings.
Some of these works may have significant financial value, while some may be more valuable in terms of local history and culture.
When the donors of such works are deceased, a library is best suited to use them[2] if they can show they have ownership of both the physical object and copyrights.
As the member points out, the copyright will survive the life of the author. And so they ask:
- If a library/archives lacks a deed of gift (or if the deed of gift doesn’t explicitly transfer copyright), can an heir transfer copyright or otherwise provide permission for the library to publish/digitize/etc?
- In NY, are copyrights automatically transferred to heirs when someone dies?
- What if there is no will?
To illustrate the answers to these questions, let’s create a hypothetical scenario:
Person ABC[3] was a long-time member of the Library. Prior to their death at the age of 98, they left the Library 200 sketches. Some library workers still remember the day Person ABC dropped them off, but there is no documentation (“deed of gift” or other document acknowledging the donation). The Library would like to create a special collection to house the sketches and to digitize them for inclusion in an online archive. The Library has found their surviving spouse, child, and the executor of the estate (who has zero information about the sketches, which were not mentioned in the will).
First, the Library can work with the heirs to obtain an acknowledgment letter confirming there is no disagreement regarding custody and ownership of the physical objects.
Second, the Library can work with the same people to obtain an assignment of copyright, since without a will, the copyright would have passed to Person ABC’s heirs.[4]
And third, the Library can initiate outreach for the letter with an outreach letter summarizing the situation and the parties’ communications.
Here is a sample of the outreach letter:
As you know, the Library has 200 sketches by Person ABC and remains grateful for the donation of these items.
Recently, the Library has been taking steps to formally accession the sketches Person ABC left to the Library. This work includes planning to make digital images of their important work available for purposes of research and scholarship.
To ensure we can put accurate and helpful information about the pictures in our archive and to facilitate its use for scholarship, the Library has two requests:
First, can you kindly sign the accompanying donation acknowledgement? We know that the sketches were left to the Library, but this acknowledgement will help us document their provenance.
Second, if you are amenable, can you sign the accompanying “Assignment of Copyright?” This will position the Library to archive the sketches digitally and to allow use of images for purposes of scholarship and research.
Thank you for considering providing the Library with this documentation. Please don’t hesitate to contact me with any questions.
Sincerely,
Director
Here is a sample of the Donation Acknowledgement:
DONATION ACKNOWLEDGEMENT
The undersigned: NAME and NAME (“Acknowledging Parties”), all being at least 18 years of age, hereby review and acknowledge:
1. To the best of our joint and individual ability to determine, the sketches listed below (the “Photographs”) were created by Person ABC:
[insert list/description]
2. A copy of each of the Sketches is attached as “A.”
3. To the best of our joint and individual ability to determine, the physical copies of the Sketches were given to the Library by Person ABC in approximately YEAR.
[include signature and witness blocks]
Here is a sample of the Copyright Assignment:
COPYRIGHT ASSIGNMENT
The undersigned: INSERT NAMES (“Assigning Parties”), all being at least 18 years of age, hereby review and acknowledge:
1. To the best of our joint and individual ability to determine, the sketches listed below (the “Sketches”) were authored by Person ABC:
[insert list/description]
2. A copy of each of the Sketches is attached as “A.”
3. Person A was born on DATE and died on DATE.
4. The Assigning Parties were their only heirs.
5. Any and all rights to the Sketches possessed by the Assigning Parties per the Copyright Act and the Estates Powers & Trust Law are hereby assigned to the NAME Library.
[include signature and witness blocks]
For the most part, confirming that the natural heirs have acknowledged the gift—and that they convey any copyrights they have inherited—will ensure no competing claim can muddy the waters of using the works for archival and research purposes.
There is, of course, one large wrinkle here.
What is it?
Money.
In the event the works in question become valuable, the above-listed recital might not be enough.
To illustrate why, let’s return to our scenario...
As it turns out, Person ABC was a famous space marine, although tales of their exploits have only recently made it back to earth. Consequently, interest in her 200 sketches of rocks, deserted wasteland, and tentacles emerging from blown hatchways is WAY up, and a famous movie producer is offering millions of dollars to license her work and story.
Just as the Library is about the sign a deal that will ensure the Library will be able to repair its leaking roof and to add a new “Person ABC” science-fiction wing to the Library, one of the people who signed the Gift Acknowledgement and Copyright Assignment calls a press conference and says “I signed those documents before I knew what I was doing.” They then hire a well-known lawyer to try and argue that the documents are invalid.
Cases that deal with contested “deeds of gifts” and donor documents are all over the place. When enough money is on the line, every detail will be scrutinized. Was Person ABC of sound mind when they gave the Library the documents? Did they unfairly disinherit their child? Is one of the witnesses now a known liar?
No amount of customized legal drafting can forestall these types of objections, but here is the take-away: whenever possible, a library or other cultural institution should use a customized donation document reviewed by a lawyer to ensure it is as strong as possible. The more valuable the asset, the more it is essential to draft and review the documents to meet the specific circumstances.
Thank you for an excellent question.
[1] I am using the term “materials” because many times, the type of material we are discussing is not in the collection of the library, nor yet part of an archive or special collection.
[2] By “use them” I mean: add them to a collection, a special collection, or an archive, or to create a special exhibit either in hard copy or online.
[3] I use “Person ABC” rather than a fake name, since coming up with names immediately brings up questions of the larger narrative around the fake person. With “Person ABC,” the reader is free to assign my fake person whatever persona and backstory they like. Perhaps they were a space marine who fought aliens and donated the library pictures of their intergalactic adventures! Or maybe they were a local artist who taught half the kids in town how to collage. You’re in control.
[4] This is the answer to two of the questions: "In NY, are copyrights automatically transferred to heirs when someone dies? What if there is no will?"
