I was browsing ebay and often, there are used rubber molds, often
bought from estate sales, for example. In fact, I was at an estate
sale last year where they were selling a large stack of old molds
for $100 or so....Now, does buying them automatically give you the
IANAL (“I am not your lawyer”). and there are a lot of complex issues
here but there are also some probability and "business decision"
issues too. First, we’ll assume the designs in these molds are all
the work of the deceased or properly in possession of the sole heir
or sole assignee of the author/copyright owner. We could also assume
that all heirs “signed” over (or at least gave provable and plausible
permission of) rights to disposal of the molds to the seller. We can
also make a very safe bet that the executor/trix (supervised or
tutored — in the breach, the most likely case — by some non-IP
knowledgeable attorney) has no formal assignment document drawn up
that will pass with the molds.
So the estate is validly selling the molds by our assumptions. The
heirs do not want the molds nor----the presumption must be----to
exploit any copyright ownership in those designs. If they did want to
exploit that copyright ownership one would think they must do so
without selling the mold.
I believe pretty much any court will see it that way OR, assuming
the original author was someone very famous AND the heirs got
demonstrably bad attorney advice, or some such, should the court
decide the “copyright” should remain with the heirs it will also
indemnify any “good faith” buyer and subsequent user of the molds. To
"give it (the copyright) away" with the mold sale and expect to keep
it via a “legal claim” could even be fraud I would think. How much it
costs to get that court decision and who, in the end, pays for that
decision is another issue entirely.
Now, suppose we start chipping away our assumptions. Maybe the mold
owner did a surreptitious theft of Donald Duck and that mold is in
the collection—what else in their collection might be
stolen?—might it all be suspect? Even if there is no smoking gun
Donald Duck do we have any certainty that none of the designs were
stolen? What if the deceased “owner” were the last tenant of a
cooperative establishment? What if they were a casting shop owner?
Whose heirs through greed or incompetent legal advice believe they
should get whatever money they can for the molds and don’t have to
return them to their rightful (and perhaps even well documented)
What if the deceased author’s copyright rights were not specifically
allocated in the will though all other possessions were? Now it is
the state (in the USA) whose formula decides who the rightful heirs
are—though generally, except in the case of famous
author/designer’s, no one will pay any attention.
After you read this post can you ever be a “good faith” buyer of
Now to the probabilities. What is the probability that a rightful
heir will sue. Virtually zero. What is the probability that a wronged
true owner will sue? In the case of a cooperative maybe a little
higher than virtually zero, especially if the last tenant was casting
the design and faithfully sending royalty checks. Maybe even higher
in the case of a closed casting shop’s mold inventory.
What should you do?
For Ebay auctions post the question: Are the designs of these molds
all the intellectual property of the estate and are any and all
intellectual property rights to those designs being given up to the
buyer? If the answer is yes, highly probable, then you might, to be
cautious, ask the seller to list the names of any owner/authors
and/or owners by assignment. Most likely, if not flummoxed, they will
only list the deceased who’s registered copyrights you can look up at
the copyright.gov web site. If they say no to the first question
don’t bid or if you already did then request, if you wish, that Ebay
let you withdraw your bid since the seller has materially changed
what they are apparently selling. Finally, ask if they will sign an
intellectual property assignment statement for the bid winner. Print
out and file the dated pages showing the questions and answers. After
you win, fax or email them your assignment statement and have them
send it back signed with the molds or get it faxed back before you
For an estate auction, look up the deceased and possibly their
pre-deceased spouse on the copyright.gov web site. Get a proper
assignment form prepared by your IP attorney or find one on the web.
For the USA there is no official assignment form for copyrights but
you should see
Take it to the auction. Make it an “In the event that I bid on and
win the purchase of molds, works, drawings, designs, or any
intellectual property…” type agreement and, in advance of bidding
(i.e., be their early to see the lots, etc.) find the executor/trix
or representing attorney and get their signature. In general you
will have no trouble with this and it will, on its face, when you
file it with the Copyright office (do this even if you found no
registrations, remember, copyright does not require registration),
provide proof of both the seller’s and your good faith. If an
apparent legitimate signature cannot be gotten you may not want to
bid or you may, if you can, pose the question to the auctioneer when
the lot comes up and then bid or not depending on the response.
Business decision time. Are the molds/designs worth any hassles,
costs, and any expected value probability of future litigation? Do
you think you can, in lieu of litigation should any issue come up,
offer and negotiate some reasonable win-win deal—say 10 percent of
your profits from any such acquired mold designs—IF the claimant
provides adequate, convincing documentation that they have a claim
outside any assignment agreement you got?
My advice if you want to buy molds. Do so with what documentation
you can get and expect that once in a great while someone will crawl
out of the woodwork. When that occurs, make some rational "win-win"
decision (even if that means you cease to do a lucrative design that
may be, say, apparently stolen) long before anything has a chance at
getting to litigation.
If you think you need specific, situational legal advice, get a
sound IP attorney—do not take whatever you hear on some discussion
forum as gospel.
James E. White
Inventor, Marketer, and Author of “Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)” Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com