Remember When?

Submitted by patentadmin on Tue, 05/04/2010 - 06:48

As the reader may (should) know, a copyright assignment, if it is to be enforceable, must be “in writing and signed.” Clear? Maybe not.

Must the written document identify the copyrights which are being transferred, or is it sufficient that the document merely indicate that some of the transferor’s copyrights are being transferred, leaving a court to determine which ones? Surprisingly, this question has apparently never been addressed – until now. (The SCO Group v. Novell)

The folks at SCO claimed that Novell had transferred, to them, ownership of certain copyrights to the UNIX computer operating system. The claim was based on an ambiguous document which failed to identify any specific copyrights.

The Tenth Circuit Court of Appeals held that it was sufficient that the writing evidenced a transfer of some copyrights and that a jury, utilizing extrinsic evidence, could determine which copyrights were being transferred. Ultimately, a jury found in favor of Novell, which has, nevertheless, petitioned for certiorari to the U.S. Supreme Court, arguing that the Tenth Circuit’s decision “undermines certainty and predictability in copyright ownership.” (You gotta admire Novell’s ethics, if not their smarts.)

Bearing in mind that copyrights may survive 70 years after the death of the author, we can foresee some interesting cases where juries attempt to divine the intent of long dead parties based upon musty old documents and senile old witnesses.

THE LESSON TO BE LEARNED: Avoid uncertainty, identify the specific copyrights being assigned.

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