Who Owns the Copyright in the Virginia Tech Killer's Video?

I've heard people discussing this, so I thought I'd chime in with a few thoughts.

1. Right To Exclude vs. Right To Use: First, remember that owning a copyright means having the exclusive rights (minus whatever rights you've licensed to others, and whatever rights they may have under fair use and other doctrines). The copyright is thus the right to exclude (and therefore the right to sue). Even those who don't own the copyright may have the right to use the work, because they have license, because they are entitled to under the fair use doctrine, and such.

2. Ownership of the Right To Exclude: This having been said, who owns the copyright? The initial owner was the killer himself. If he expressly conveyed it in a signed writing during his life (e.g., wrote to NBC that "I am conveying my copyright to you," and signed the writing), then the copyright is owned by the recipient. But if he didn't convey it, and didn't mention it in any will, then the copyright is owned by his parents (since he doesn't have a wife or children, and his parents are thus his heirs). I haven't heard of any express conveyance, so that means the parents own the copyright. They might be able to sue people who distribute them, copy them, or run them, but they'll lose if the defendants have a license from the killer or are engaged in fair use.

NBC thus can't sue anyone who copies the materials from its broadcast or its site, unless they themselves have added some creative expression (which may include sufficiently detailed editing decisions) that is being copied. They simply have no rights to sue over copying the killer's work (again, unless he conveyed the exclusive rights to them in a signed writing, which seems unlikely).

3. Implied or Express License as Limitation on the Right To Exclude: The killer's sending the materials to NBC likely conveys to NBC a nonexclusive license to use the materials, probably including on its Web site. The killer's family thus can't sue NBC to stop it from continuing to distribute the materials.

4. Fair Use as Limitation on the Right To Exclude: But in any event, these are materials that are of pretty substantial public importance (whether or not you think it was ethical or proper for NBC to distribute them). I expect that the parents would disclaim any desire to profit from them, and if they sued they'd sue only to suppress them, so there's no effect on the market for the materials. And even if NBC has some copyright in the material it added (for instance, a logo in the corner of the screen), its additions are likely very modest indeed.

So people who want to copy the materials would have a very strong fair use defense against both the killer's parents (should they wish to sue) and against NBC (should NBC sue over use of its very modest additions to the materials). I'd say this is so even if they copied the entire materials, which usually cuts against fair use, but here would likely be outweighed by the other factors.

5. Exotic Arguments: Might the killer have deliberately abandoned his copyright by releasing the manifesto with the intention that it be distributed as widely as possible (presumably the goal of manifestos)? He's dead, so we can't be sure of his intention, but it seems likely that he did have this intention. This, though, is likely not to matter much, since the fair use defense is so strong.

6. Thus: NBC vs. Copiers/Redistributors/Broadcasters, as to the killer's manifesto itself: NBC loses because it has no right to exclude (assuming the killer didn't convey such a right in a signed writing to NBC).

Family vs. NBC: Family loses because NBC has a license from the killer.

Family vs. Copiers/Redistributors/Broadcasters: Family loses because the users are entitled to engage in fair use of the materials.

NBC vs. Copiers/Redistributors/Broadcasters, as to NBC's modest creative additions to the work (editing choices, logo, and the like): NBC loses either because the creative additions are too modest to be protected by copyright, or, even if they are sufficiently creative to be protected by copyright (e.g., the logo), because they are so lacking in detail and such a small part of the copied materials.

BobH (mail):
Dang, Professor! A pretty near-perfect bar exam response!
4.24.2007 7:24pm
Eugene Volokh (www):
If only the bar tested on copyright law .... If I recall correctly, even the Hollywood/Silicon Valley California Bar doesn't test on that.
4.24.2007 7:35pm
zooba:
You forgot to mention termination of transfers / licenses with respect to #3.
4.24.2007 8:11pm
Eugene Volokh (www):
What should I have mentioned about it?
4.24.2007 8:12pm
U.Va. 1L:
I can't be sure (I haven't started my Copyright outline yet), but I thought I learned this semester that a copyright can only be dedicated to the public domain by an express declaration?
4.24.2007 8:15pm
U.Va. 1L:
For transfers executed on or after January 1, 1978, termination may be effected:
At any time during a five-year window, which begins at the end of 35 years from the date of execution of the grant. His heirs have the right of termination and may do so by notice of termination on the grantee. The notice must state the effective trimination date (which must fall within the five-year window just described) and must be served not less than two or more than ten years prior to that effective date.

There are some other rules I left out. See 17 U.S.C. Sec. 203.

Creative Commons has a nifty tool related to this here: http://labs.creativecommons.org/termination/
4.24.2007 8:23pm
zooba:
You conclude that Cho's family cannot sue because of an express / implied license from Cho to NBC. But that should be modified to be, they cannot sue now. If there was an express or implied transfer to NBC, Cho's family may not be able to sue NBC now, but could sue in 35 to 40 years by issuing a termination of license notice to NBC / NBC's successor. I'm assuming Cho had no family / children or will and that his interest presumably went to his parents as executors' of his estate under 203(a)(2)(D).
4.24.2007 8:28pm
I have a question:
Professor,

With regard to point no. 3, why can't the owner of the copyright (the family) notify NBC that it no longer consents to any further use of the video? If all that's been conveyed is an unwritten, nonexclusive license, doesn't the licensor have the right to revoke the license, at least with regard to future uses?
4.24.2007 8:35pm
Regarding the plays...:
I was wondering how a similar analysis as to the plays that Cho wrote in his playwriting class that were then posted online by another student in the class would turn out. Specifically, how successful might a claim be by the family to get them removed (for personal/privacy reasons perhaps) from the internet?
4.24.2007 8:42pm
Eugene Volokh (www):
Jeez, folks, 35 years is a long time, especially with an item such as this. It was a long enough post already; I didn't want to make it longer by discussing something that might happen in 2042 (and that's in any case largely irrelevant because of the fair use defense).

I have a question: I don't think so; if the implied license is understood to be unlimited -- and I think it would be, for a manifesto such as this -- I don't think it can just be revoked for a new owner.
4.24.2007 9:00pm
ech:
Prof. Reynolds has a question over at Instapundit:

I'll just add this question. Given that Cho was pretty clearly insane at the time he mailed the videos to NBC -- and NBC certainly had reason to think this might be the case -- should his intention to grant NBC a license be binding as against a lawsuit from his heirs?


Discuss.
4.24.2007 9:08pm
Letalis (mail):
They may not have tested us on copyright law, but my state saw fit to ask us an essay question that involved an estate and gift tax issue involving a hot tub company owned by an Iranian national who was married to a US citizen.

At least I think it was an estate and gift tax issue.

Oh well. I passed.

And I haven't confronted an estate and gift tax issue since.
4.24.2007 9:10pm
dmitry:
so far you are talking about content. what about the movie itself? If the killer sent in a VHS tape, and NBC had to to transform the movie into a web playable format, do they own the copyright to that movie file?
4.25.2007 2:56am
Richard McBeef (mail) (www):
I was wondering about performances of the plays written by the shooter, such as here: http://www.youtube.com/watch?v=P0CiYqDqJMc

Is this a violation of copyright (does schoolwork automatically retain copyright?), and do the producers of said video retain their own copyright of the recorded performance of the play?
4.25.2007 4:06am
LKB (mail):
Interesting scenario.

I agree with the analysis that the Cho (now his estate) owns the copyright in the materials, but that NBC has an implied license. As noted by a couple of folks, however, the question is whether the copyright owner (i.e., Cho's estate) could terminate the license immediately.

The answer depends on what circuit you are in. The majority rule is that an implied license is a contract of indefinite duration (i.e., no stated term or agreed method of termination), and thus is generally terminable at will (assuming that applicable state law allows this, but contract law in most states does so). See Korman v. HBC Florida, Inc., 182 F.2d 1281 (11th Cir. 1999); Walthal v. Rusk, 172 F.3d 481 (7th Cir. 1999). However, the Ninth Circuit goes the other way, and holds that any termination can only be after the 35 year period of section 203. Rano v. Sipa Press, Inc., 987 F.2d 580 (9th Cir. 1993). It should be noted that Rano has been roundly condemned by courts and commentators; indeed, as the Seventh Circuit noted in Walthal, "if the Rano decision were a Broadway show, bad reviews would have forced it to close after opening night."

Nor is this issue completely an academic exercise. While Cho's parents (or other legal beneficiaries) may well not want anything to do with his copyrights in these materials, his victims may well be interested. Assume that some of them file claims against his estate and insist that the administrator or executor perserve the value of the estate's assets (and thus the maximize the pool of assets available for distribution to estate creditors) by terminating NBC's license. On what grounds can the administrator / executor refuse to do so ?

LKB in Houston
4.25.2007 11:36am
Newsboycott (mail) (www):
NBC News probably thinks they own it... just like they thought they had the freedom to do whatever they wanted with the materials. It was a disgrace how they branded the killer's videos and pictures with their logo. If you are disgusted by this also - please join our petition and boycott.

newsboycott.com
4.25.2007 8:02pm