Winkler v Roy (Kelley v Roy), 2002 FCT 950 (CanLII).

Key Principle:

An owner of a copyright in a work is free to assign or license some or all of the rights associated with that copyright to another person for the entire life of the copyright, which is normally for the life of the author, the calendar year in which the author dies, and 50 years following the end of that calendar year. But, where an author of a work is the first owner of copyright in that work (i.e., he or she did not sign a contract to create the work for someone else), any assignment of a copyright, other than by will, is void after the expiration of 25 years from the death of the author. After this point, the copyright will revert back to the author’s estate. This law can be found in section 14(1) of the Copyright Act and it overrides any contract that may state otherwise.

Summary:

The Situation:

You are the only living relative of your Aunt Daisy, who is the world famous writer of “Blueberry’s Day Out,” an extremely popular children’s book. Your aunt was very poor when the book was published. As such, upon completion of the book she signed a contract with Sketchy Publishing Co., relinquishing all of her copyright interest in Blueberry’s Day Out to Sketchy forever, including exclusive publishing, motion picture, and related merchandising rights. The contract specifically stated that no rights granted to Sketchy will revert back to the author. In return Sketchy paid her $5,000. The book became a huge success and Sketchy profited greatly.

Sadly, Aunt Daisy passed away last year leaving everything to you in her will. The will specifically stated that all rights Aunt Daisy currently holds in her artistic works will go to you.

You bring an action against Sketchy, claiming that the rights to Blueberry’s Day Out are now yours. Sketchy claims that Aunt Daisy gave up her interests in Blueberry’s Day Out forever, and Aunt Daisy’s will cannot reverse that. Sketchy further claims that Aunt Daisy contracted away her reversionary interest, meaning upon expiry of the copyright it will not copyright will no go back to the author’s heirs.

The Conclusion:

Unfortunately, Aunt Daisy freely contracted away her copyright interest for consideration (money), so the copyright in Blueberry’s Day Out belongs to Sketchy at this time. An author is free to assign or grant all or part of a copyright interest for either a part or the entire duration of the copyright (section 13(4) of the Copyright Act), which is for the life of the author, the calendar year in which they die, and 50 years after the end of that calendar year. However, any agreement made by the author stating they have given up their reversionary interest is void 25 years after their death (due to section 14(1) of the Copyright Act). So, in 25 years you will be the owner of the copyright in Blueberry’s Day Out. Sketchy’s claim that it will never revert back to you will not succeed.