What&#39;s the default copyright transfer for a magazine article, in absence of a written contract?
<p>Suppose an author sells an article to a magazine in the United States, but without a written contract and without any oral discussion of what rights were being sold. The magazine comes out containing the article, and everyone is happy. Now, many years later, the magazine wants to include the article in a new bound volume of the magazine's contents, without further permission from or payment to the author. Can the author object?</p>
<p>In light of 17 USC sec. 204(a), I assume the burden of proof would be on the publisher to show a written agreement to transfer more than the right to publish the article once. And since there is no written agreement, the publisher would lose if the author took it to court.</p>
<p>So, it seems like a simple answer. But in the law I'm always amazed to discover different angles and factors I hadn't thought of. Hence this post.</p>

<h2>None</h2>
<p><strong>Transfer</strong> of copyrights or exploitation rights <strong>always</strong> requires a written contract.</p>
<p><strong>Licensing</strong> does not require a written contract.</p>
<h2>HOWEVER....</h2>
<p>&quot;An author sells an article to a magazine&quot; is a special situation: that is acceptance of the written terms of sale that were in place when the article was sold. That <strong>is</strong> a written contract, and typically they buy the article with very specific rights. And... things really can get murky for really old publications like <a href="https://www.aetherial.net/lovecraft/conclusion.html" rel="noreferrer">Weird Tales</a></p>

<h2>There is no default</h2>
<p>The terms of each contract define what rights are transferred and what are retained. Subject to the law in specific jurisdictions …</p>
<ul>
<li><p>In some jurisdictions, a copyright transfer requires a written agreement, in others, it doesn’t. However, I can grant an exclusive, perpetual, all-rights licence which is practically a copyright transfer without it having to be in writing.</p>
</li>
<li><p>Some jurisdictions allow a licence or copyright transfer to be cancelled after a given time period. In some this may be automatic, in others, the author must take specific steps.</p>
</li>
<li><p>Some do not allow the transfer of some rights - like moral rights, and others do not allow any transfer, while still others will let you give away the farm.</p>
</li>
</ul>
<p>Notwithstanding, assuming the contract is lawful in the relevant jurisdiction, then what it says goes.</p>
<p>If there is dispute about the terms of the agreement, including disputes about if there was a written agreement now lost, well, courts resolve those types of disputes all the time. The consider the evidence and who bears the burden of proof on each assertion and make a ruling about what the agreement was.</p>
<p>There may be testimony of people who witnessed the events, there may be testimony of standard-form contracts that were typically used at the time, there may be written correspondence, there may be payment slips, etc. The trier of fact has to weigh all that and decide who’s case is proved.</p>

<p>Your conclusion is correct under US law. 17 USC 204(a) says</p>
<blockquote>
<p>A transfer of copyright ownership, other than by operation of law, is
not valid unless an instrument of conveyance, or a note or memorandum
of the transfer, is in writing and signed by the owner of the rights
conveyed or such owner’s duly authorized agent.</p>
</blockquote>
<p>Therefore, the magazine only has two legal options for publishing. First, if the author is an employee, the magazine is the author and this is a work for hire, which is contrary to your presumption. Second, the work may be licensed, which can include an implicit license. A transfer has to be sufficiently explicit that it is a complete transfer of rights, and not merely suggestive.</p>
<p>Implied licenses are valid but their conditions are not crystal clear, see for example Latimer v Roaring Toyz, 601 F.3d 1224, Pelaez v McGraw Hill, 399 F. Supp. 3d 120. <a href="https://www.ce9.uscourts.gov/jury-instructions/node/283" rel="nofollow noreferrer">This instruction</a> on implied licenses say how the defendant can establish that there is such a license.</p>
<blockquote>
<p>the defendant has the burden of proving that:</p>
<ol>
<li>the defendant requested that the plaintiff create a work; 2. the plaintiff made that particular work and delivered it to the defendant;
and 3. the plaintiff intended that the defendant [copy] [distribute]
[use] [retain] the plaintiff's work.</li>
</ol>
</blockquote>
<p>If the court cares about the first test (which is a bit ritualistic), there was never an implied license, that is, the magazine erred in not securing a <em>written</em> license. An implied license cannot be perpetual or exclusive.</p>

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