Anmerkungen:
In: University of Pennsylvania Law Review, Vol. 157, No. 3, 2009
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments January 14, 2009 erstellt
Beschreibung:
An interesting but difficult problem in copyright law occurs when an individual holder of a jointly owned copyright decides to license the copyrighted work without the consent of her co-owners. By and large, copyright law permits unilateral actions by a single joint owner, despite the potential consequences for other co-owners. One situation, however, has recently caused problems for courts and commentators: when a co-owner unilaterally resolves an act of copyright infringement by a third party by retroactively licensing that infringer, purportedly authorizing her prior infringement. As this Comment discusses, the absence of a clear rule on whether unilateral retroactive transfers can cure prior infringements can affect transactions involving jointly owned copyrights. Indeed, this question has not only significant legal implications, but also practical importance. Most basically, it raises questions of copyright law regarding coownership, alienability of rights, and copyright’s general goals and aims; yet its significance extends further. Since the co-owners of a jointly held copyright are to be treated generally as tenants in common, property law may play some role in resolving the issue, though the question of how great a role it ought to play is contested. Before elaborating on an answer, however, it is necessary to set forth some background. To that end, Part I covers general substantive copyright law as well as the specific rules on joint ownership of copyrights and the general alienability of those rights. Since the cases that have dealt with the question at issue here provide a valuable glimpse into the various approaches available to courts in considering this problem, I discuss those approaches in Part II. I then turn to a discussion of the guiding goals and principles of the Copyright Act and other areas of law that may help in evaluating the legality and equity of retroactive transfers in Part III. Lastly, in Part IV I, use these principles to conclude that, while there are strong arguments for allowing unilateral retroactive transfers, the nonsettling co-owner is so disadvantaged that unilateral retroactive transfers should not be allowed