Businesses and individuals often engage in negotiations with regard to any number of issues through the forum of e-mail.  Such negotiations pose a variety of risks because of the fact that the negotiations are in writing and could be used for purposes that the sender did not intend.  For instance, the sender of an e-mail should exercise caution during preliminary discussions to transfer or share rights in a copyright.  Even though the Copyright Act requires that any such agreement must be signed, there is a high probability that the Third Circuit would find that an e-mail satisfied such a requirement.  
The Copyright Act, at 17 U.S.C. 204(a), provides:

  • 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.

17 U.S.C. 204(a).  No cases specifically address e-mail signatures with regard to this statute.  However, federal courts have applied the statute of frauds, and the decisions interpreting it, to this section of the Copyright Act.  See Pamfiloff v. Giant Records, Inc., 794 F.Supp. 933 (N.D.Cal. 1992).  The statute of frauds case law generally supports the enforceability of an e-mail contract.  For example, in Bazak Intern. Corp. v. Tarrant Apparel Group, the Southern District of New York found that including a typed “signature” at the bottom of an e-mail satisfied the signature requirement in the statute of frauds contained in the Uniform Commercial Code.  378 F.Supp.2d 377, 386-387 (S.D.N.Y. 2005); see also Shattuck v. Klotzbach, 14 Mass.L.Rptr. 360, 2001 WL 1839720 (Mass.Super. 2001).  
Though there are no cases in the Third Circuit directly supporting this principle, it seems likely that the Third Circuit would make the same findings.  That court, applying the Pennsylvania Uniform Commercial Code’s statute of frauds has stated, “Any mark or symbol-including a typewritten name-will be deemed to constitute a signature for the purposes of the statute if it is used with the declared or apparent intent to authenticate the memorandum.”  Flight Systems, Inc. v. Electronic Data Systems Corp., 112 F.3d 124, 129 (3d Cir. 1997) (citing Hessenthaler v. Farzin, 388 Pa.Super. 37, 564 A.2d 990, 993 (Pa.Super.1989)); First Valley Leasing, Inc. v. Goushy, 795 F.Supp. 693, 696 (D.N.J. 1992)(finding that a company’s letterhead on an invoice was sufficient to satisfy the statute of frauds’ signature requirement).  It seems likely, especially considering the findings of other jurisdictions cited above, that these principles would also apply to e-mail signatures.  
Therefore, if the content of an exchange of e-mails would otherwise satisfy the requirements for contract formation, the signature requirement of the Copyright Act would most likely not protect a party from the enforcement of the terms of such e-mails.  As a result, parties should exercise caution in composing e-mails containing negotiations for the transfer of rights to a copyright.