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So in this question the OP bought the contents of a storage unit whose owner had failed to keep up with payments. In it they found an unpublished manuscript, which they thought was pretty cool and wanted to publish it.

There are answers and comments about the ethical thing to do, but I want to put that aside for this question, and just focus on the legal copyright side.

In the comments there was discussion on who would own copyright to the manuscript. Since the OP legally owned the original physical manuscript I thought that the copyright would belong to the OP, whereas others posit that it would belong to the author's heirs.

The reason I thought it would belong to the OP is because I had heard stories of people finding works of art in their attic, and going on to auction them off (making an unexpected windfall).

So I wanted to ask here on SE law (not SE writing) specifically:

Who would legally own the copyright of a 'found in storage/attic manuscript/piece of art' and what difference the art medium (e.g., words on paper vs paint on canvas) would make

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    I would guess that owning the only existing copy of a work, even if you don't own the copyright of a work, puts you in a unique negotiating position with the copyright holders, if you can find them. – Erwin Bolwidt Dec 9 '19 at 2:30
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    Owning a physical copy is not the same as owning the copyright. For example, there may be more than one physical copy. – JollyJoker Dec 9 '19 at 12:43
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    This question was answered entirely in your linked Q/A, including the copyright aspect not just the ethical one. – Jesse_b Dec 9 '19 at 14:12
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    Isn't this just the classic, "Why can't I make and sell copies of the games I buy? I own the game!" – Ethan Owens Dec 10 '19 at 17:25
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    @GaryMyers I know of at least one jurisdiction the author have the legal right to do so. In Brazil, the right to make a copy of a rare work is given under the Moral Rights section of the Author's Rights law. Interestingly, such right is not given to the copyright owner, and is non-transferable: only the author and heirs have it, not the editor. – lvella Dec 11 '19 at 14:05
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Note: this answer refers to US copyright law. Other jurisdictions may differ, though the Berne Convention means that the general rules are largely the same. See chx's answer for more details.

There are two different "things" you can own when it comes to an artistic/creative object: the physical object itself, and the right to reproduce it (i.e., the copyright). US Law specifically notes that owning the physical object does not imply that you automatically own the copyright, or vice versa:

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

If you find the manuscript to an unpublished Kurt Vonnegut novel in your attic, you are within your rights to auction off the manuscript to the highest bidder. This is analogous to finding a "lost" Warhol painting in your attic and putting it up for sale.

But just because you own the original does not necessarily give you the rights to reproduce it, either for the painting or the manuscript. By default, the copyright in any creative work belongs to its creator, and physical ownership of the work does not also grant the owner the copyright by default. In the case of the Vonnegut novel, the right to reproduce and publish the manuscript would still belong to Vonnegut's estate, unless Vonnegut (or his estate) had explicitly granted that copyright to another party.

The analogous situation for the Warhol painting would be taking the painting and selling prints of it, or putting it on a mug or a t-shirt. If Warhol (or his heirs) never granted the copyright in the painting to anyone else, then the right to reproduce it still belongs to them.

The medium of expression does not make a difference in the legal principles involved, and who has the right to do what. It only makes a difference in how easy it is to faithfully reproduce it.

As noted in the comments, works that are sufficiently old will eventually pass into the public domain. If the work is "unpublished" (as the hypothetical Vonnegut novel would be), this happens 70 years after the death of the author. Anyone could legally publish the novel at this time, not just the owner of the manuscript.

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    @DarcyThomas: No, it does not implicitly transfer; it has to be explicitly assigned to you by the creator. See the section of US Code I added to my answer above. – Michael Seifert Dec 8 '19 at 18:49
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    IMHO the "Other jurisdictions may differ" is too restrictive - all the same concepts are stated in Berne convention, and almost all countries worldwide (en.wikipedia.org/wiki/Berne_Convention#/media/…) are signatories. – Peteris Dec 8 '19 at 20:02
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    regarding "public domain" - thanks to Disney, any work created between 1923 and 1977 has a special extended copyright of 95 years – Aaron F Dec 8 '19 at 20:21
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    @Peteris: If you point me to the portion of the Berne convention that mentions this, I'll be happy to edit it into this answer. – Michael Seifert Dec 8 '19 at 21:06
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    @AaronF: Any work published from 1923–1977 has a copyright term of 95 years from the date of publication. Unpublished works enter the public domain 70 years after the death of the author, or 120 years after the creation if the author is unknown (or the copyright would belong to a corporation.) See here, for example. – Michael Seifert Dec 9 '19 at 12:42
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Quick answer: Only the author/creator can get copyright, so: No, this buyer does not get copyright over these works.

(The US Copyright Office has several pamphlets explaining copyright clearly and concisely. I've linked to some of them below; if you want more detail, they are the best place to start.)

Copyright v Right to Copy: Copyright is not the same as the right to copy. Copyright gives legal control over making copies to the author/creator. If a work is copyrighted, the owner of the copyright has the right to decide who can copy the work. If a work is not copyrighted, it is "in the public domain," and anyone has the right to copy it.

Is the work copyrighted? The answer depends on when it was created. In the US, the rules changed dramatically on January 1, 1978.

For works created after Jan 1, 1978, the author gets copyright once she puts pen to paper. Since then, all creative works that have been "fixed" in a "tangible form of expression," are automatically copyrighted, whether or not they are registered. (Registered works get some extra protections.)

For works created before 1978, the author got copyright after the work was published or registered. (Under the new law, works that were created before 1978 that were not published or registered before 1978 get copyright under the terms of the new law.)

Is the work still copyrighted? Again, the answer depends on when it was produced. The basic rule for works produced after 1977 is that copyright lasts until 70 years after the creator's death. The rules for works produced before 1977 are more complicated. Among other things, whether a work is still copyrighted depends on whether the copyright was renewed.

What about the heirs? Copyright is an intangible right. It passes to the heirs on the creator's death, regardless of whether they still own the tangible creation. However, the heirs only have rights over the tangible creation if they own it. If they don't, the owner of the painting or manuscript can keep any and all money he gets from selling these.

Copyright and the "bundle of sticks:" Law professors love to say property rights are like a bundle of sticks. Each stick represents the legal right to control some use of the property. In this case, whoever owns the copyright stick has legal control over copying the property. Someone else may own the actual physical property.

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    Author/creators of works can transfer the copyright to others, and they frequently do. The crux of this question is the circumstances under which such a transfer occurs. – phoog Dec 9 '19 at 15:55
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    @phoog Exactly! The OPs specific question is whether he bought the copyright when he bought the painting. The answer to this question is always "no." To get the copyright, he has to do more than buy the painting. – Just a guy Dec 9 '19 at 17:08
  • What if it cannot be proven when it was written? – gerrit Dec 11 '19 at 9:46
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    @gerrit Then you have what's called an "orphan" work. With the internetization of texts, they became a huge issue. If you want to read more, here are some places to start: en.wikipedia.org/wiki/Orphan_works_in_the_United_States mbie.govt.nz/dmsdocument/4783-orphan-works – Just a guy Dec 11 '19 at 14:43
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The copyright remains with the estate of the author (assuming it has not run out): they are the only ones able to authorize creating copies from the work you found. That's where their right ends. They can grant or refuse authorization for you to copy the manuscript and distribute those copies. But they don't have the rights to access the physical manuscript, so basically you are in a standoff situation where it is in the best interest of both parties to come to an agreement. Unless you think you are better off by keeping the manuscript unpublished in your possession, for example to wait for the copyright to run out.

You are in a slightly better position than the estate: the copyright is useless without the manuscript, but the manuscript at least is a single copy one can read. Your local copyright laws permitting, you can even let people read it for a fee as long as you don't create a copy.

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    "they are the only ones able to authorize creating copies from the work you found": unless the right was transferred. Before publishing such a manuscript a good amount of detective work is in order. – phoog Dec 9 '19 at 15:49
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    What if an author's heirs are themselves deceased, and there's no evidence that any of them were aware of the work, much less made any attempt to ascertain or negotiate ownership? By what means would anyone be legally able to publish the work? – supercat Dec 9 '19 at 22:49
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    @supercat Then the copyright is inherited by the heirs of the heirs, and so on until lapse. – user207421 Dec 10 '19 at 3:50
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Note while jurisdictions do vary, copyright actually vary very little because it's an international convention. So let's review what the Berne Convention has on unpublished works:

https://www.law.cornell.edu/treaties/berne/3.html

(1) The protection of this Convention shall apply to:

(a) authors who are nationals of one of the countries of the Union, for their works, whether published or not;

And then https://www.law.cornell.edu/treaties/berne/9.html

Article 9

(1) Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

That's pretty clear cut, isn't it? The length after which the estate of the author has a similar protection after the death of the author does vary by jurisdiction but it's decades everywhere.

As to which countries this applies to: almost all. While there are a number of countries which are not part of the Berne Convention, WTO enforces the non-moral clauses of the Berne Convention among its members (TRIPS) and the clauses above are such. There are only a few countries which are not WTO members and some of them are Berne signatories so we arrive to Eritrea, Kiribati, Kosovo, Marshall Islands, Nauru, North Korea, Palau, the Palestinian Territories, San Marino, St Maarten, Turkmenistan, and Tuvalu as to where these clauses possibly do not apply. However, even in some of these countries individual legislation might include this. That is left to others to study :)

  • But transfering the right to make reproductions is a thing. So there must be more to it then just Article 9 => the author (or Heir) always has it. – DarcyThomas Dec 9 '19 at 8:16
  • "The length after which the estate of the author has a similar protection after the death of the author does vary by jurisdiction […]" – And because of reciprocity agreements, copyright duration tends to gravitate towards the longest one, since having shorter copyright durations than a state you have a reciprocity agreement with, means that your citizen's works are protected for a shorter time than the other states' citizens' work, so it makes sense to raise your own duration to match the other states'. If all states do this, durations tend to harmonize around (currently) 70 years. – Jörg W Mittag Dec 9 '19 at 12:44
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Owning a manuscript is exactly the same as owning a paper copy of a book

If you found a printed copy of Harry Potter and the Sorcerer's Stone, would that make it OK to publish the book as your intellectual property asset?

What if your friend found a Kindle, and figured out how to download an eBook of "The Girl On The Train"?

Clearly not.

Your friend is arguing "But this is different. This "looks like" an original manuscript". In other words, believing somehow copyright travels with it, as if copyright is a bearer document one could leave behind in a storage unit. Put it this way: What if it was a manuscript of Harry Potter? "Well obviously not in that case" OK, but why? Because you've heard of Harry Potter, and not this one? Notoriety or commercial development isn't really a criterion, is it?

Hypothetically, whose name would even go on the author credit? If it's their name, why would the publisher send the check to you? :)

See, this concept falls apart quickly.

However, you can sell a paper copy of a book

While your friend has no copy rights, the paper manuscript is indeed a thing with potential value that could be sold. It might be of value to a collector, or even a publisher looking for unpublished works.

You could work with the estate to publish it

Of course, you could publish the work, with the assistance of the estate of the deceased. The asset belongs to the estate. They may see good cause to let you take a swing, or at least, to act as a representative and shop it around for a cut of the revenue. You would have to haggle out the numbers with the estate.

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    Harry Potter is a nice analogy. I wonder if it'd make your point even clearer if you added, as another example, "What if your friend found the ms of Harry Potter?" – Just a guy Dec 9 '19 at 18:03
  • Wouldn't publishing someone else's work as your own infringe the author's moral rights? Which is not the same as copyright. – Andrew Morton Dec 10 '19 at 19:19
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The reason I thought [the copyright] would belong to the OP is because I had heard stories of people finding works of art in their attic, and going on to auction them off (making an unexpected windfall).

Just as ownership of a painting doesn't cause copyright to accrue to the owner, as explained very well in other answers to this question, holding the copyright is not necessary to sell a painting at auction. Therefore, those stories do not imply that the people had any copyright in the works of art: they were not copying them but only selling them.

Because the people did not hold the copyright, they would not have been able to start a business selling reproductions of those works, for example, unless they separately acquired the copyright or a license. They could only sell the actual work itself, which they did. Similarly, if someone finds a manuscript in the attic, that person can sell the manuscript but does not automatically acquire copyright to the work contained in the manuscript.

...what difference the art medium (e.g., words on paper vs paint on canvas) would make

It doesn't make much of a difference with regard to copyright. The difference lies perhaps more in the market. With painting and sculpture and the like, the original work may be valuable in its own right, and (particularly for works by unknown artists) there may be little to no market for reproductions, whereas for literature the original manuscript may have little to no value and the copies are the primary source of revenue. There will be exceptions, of course, for works by famous people, but it should be more or less like that for works of quality produced by people who aren't famous.

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