Re: Article 1, Section 8, Clause 8.

On Tue, Aug 01, 2000, Christopher Gwyn <christopher[_at_]icopyright.com> wrote:
>
> On Mon, Jul 31, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > On Fri, Jul 28, 2000, Christopher Gwyn <christopher[_at_]icopyright.com> wrote:
> > >
> > > Can anyone think of a Supreme Court case that speaks to whether an
> > > author can actually _sell_ a copyright? (Or for that matter if the
> > > Supreme Court has ever defined what "for limited times" means?)
> >
> > It doesn't take a Supreme Court opinion to determine whether an
> > author can sell a copyright. All it takes is 17 USC 201(d)(1).
>
> Ultimately it does take the Supreme Court. If a case involving
> 17 USC 201(d)(1) came to the Supreme Court they could -- in theory
> -- declare 17 USC 201(d)(1) to be unconstitutional. It might be
> highly unlikely that they would do so, but they have declared
> long-standing law unconstitutional before. From the replies so
> far I take it that there hasn't actually been such a case at the
> Supreme Court level.

Christopher:

The reason there has never been -- and never will be -- a Supreme Court case deciding whether or not a copyright holder can sell her copyright is that the language of Section 201(d) the Copyright statute couldn't be plainer:

   "The ownership of a copyright may be transferred in whole or in    part by any means of conveyance or by operation of law... "

While the Supremes clearly have the power to declare any act of Congress unconstitutional (courtesy of the Marbury v. Madison), that power is not unlimited: five justices need to agree that the statute violates the Constitution. And since the section you're talking about deals with the transfer of property interests -- one of the cornerstones of our Republic -- that isn't likely to happen anytime soon.

Greg Ikonen
gikonen[_at_]vlg.com Received on Wed Aug 02 2000 - 15:51:18 GMT