Monday, December 22, 2014

My Brother Claims I Infringed

Dear Rich: My father spent several years writing his memoirs. He wound up with 200 pages of typewritten work. He and my mother put all their estate in a trust in 1994. He passed away in 2002. My mother passed away in 2009. After her death, the estate was divided, per their will, into four equal parts. Each of the four children took what they wanted as far as material goods from the family home. My brother and I each kept a copy of my father's manuscript. Fast forward to 2014. I spent several months retyping the manuscript into the computer, adding footnotes, an epilogue and a chapter written by my father's sister  (used with her written permission). I self-published the book on Amazon. My brother found the book on Amazon and rather than contact me, he contacted Amazon, claiming copyright infringement. I've done some research, and I believe that he and I are co-owners of the copyright, and that I do not necessarily need his permission to use my father's manuscript in the manner in which I did. Am I right or wrong?
You are right. When you and your siblings inherited your mother's estate you became equal co-owners of the copyright in your father's memoirs. Co-ownership of a copyright is very similar to being a tenant in common of a piece of real property with one or more other owners. Since there are four of you, you each own an undivided 25% interest in the copyright in the work. Each co-owner of a copyright has the legal right to enter into nonexclusive licenses with others to publish or otherwise exploit the work without obtaining permission from the other co-owners. However, the co-owner must provide the other co-owners an accounting of any profits earned upon request, and share the profits according to the ownership interests. Some courts have held that co-owners may not enter into exclusive licenses without obtaining permission from the other co-owners--- for example, you couldn't grant a movie studio an exclusive license to create a movie based on the memoirs without the consent of the other owners. But, this is not what you've done with Amazon--the Createspace publishing agreement used by Amazon specifically provides that the agreement is nonexclusive. Since the publishing agreement with Amazon is a nonexclusive license, you had every right to enter into it without permission from your siblings. Their rights are limited to receiving an accounting from you and their 25% share of any royalties you earn. Likewise, any of your siblings may enter into nonexclusive licenses on their own to publish the memoirs; but they may not use the footnotes or epilogue you wrote without your permission--you are sole copyright owner of these elements you added to the original memoirs.
By Dear Rich staffer Steve Fishman, author of the The Copyright Handbook.