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74 La. L. Rev. 59 (2013-2014)
An Exclusive License Is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright

handle is hein.journals/louilr74 and id is 65 raw text is: An Exclusive License Is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright Christopher M Newman* I. INTRODUCTION A. The Problem Is an exclusive license the same thing as an assignment? For most of the history of Anglo-American jurisprudence, to seriously pose such a question would have been simply to confess one's ignorance of the meanings of the terms. An assignment is a conveyance of one's entire ownership interest in some property to someone else.' The assignee becomes the new owner while the assignor becomes an ex-owner. A license, on the other hand, is merely a permission.2 It creates a limited-use privilege in the licensee and therefore necessarily curtails to that extent the owner's right to exclude. It leaves all other residual powers of ownership, however, firmly in the licensor's sole possession. In the realm of copyright, this clear distinction has been muddied-many claim obliterated-by the Copyright Act of 1976, which included the term exclusive license within the statutorily defined term transfer of copyright ownership.3 In Gardner v. Nike, the U.S. Court of Appeals for the Ninth Circuit held that while this Copyright 2013, by CHRISTOPHER M. NEWMAN. * Assistant Professor, George Mason University School of Law. I would like to thank all of the following for their critical comments and/or encouragement: Eric Claeys, Robert Haverly, Bob Brauneis, Rob Merges, Pam Samuelson, Molly Van Houweling, Kevin Collins, Adam Mossoff, James Grimmelman, Henry Butler, and all participants in the 2012 Henry Manne Forum at George Mason University, the Berkeley IP Workshop, and the Levy Workshop at George Mason. I would also like to thank Rob Willey for valuable research assistance. 1. See BLACK'S LAW DICTIONARY 119 (6th ed. 1990) (defining assignment as a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein). 2. See, e.g., Clifford v. O'Neill, 42 N.Y.S. 607, 609 (N.Y. App. Div. 1896). It may be conceded that a license is merely a permission to do an act which, without such permission, would amount to a trespass; and that such permission, when related to real estate, is not equivalent to an easement; nor will the continuous enjoyment of the privilege conferred, for any period of time, cause it to ripen into a tangible interest in the land affected. Id. 3. 17 U.S.C. § 101 (2006).

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