These sections cover the Copyright Act’s ownership rules. Ownership rules discussed here apply only in the United States (other countries have their own rules of intellectual property ownership).
Who Owns the Copyright?
The author of the work is the owner of the copyright, immediately upon the work being fixed. If there is more than one author, the authors own it equally, with no regard for how much any one author contributed to the finished work. Multiple authors can agree to split up the ownership of the copyright unevenly, but this requires a written agreement signed by all the authors.
Works in which the author creates a work as a part of his or her job as an employee for someone else creates a “work made for hire,” and the copyright belongs to the employer. The employer is then treated as the author for all purposes under the copyright law.
- Right to make copies. This includes the right to make copies in any fashion, now known or developed in the future. Includes the right to make copies in the form of phonorecords, which is any device which reproduces sounds in an audio-only format.
- Right to make derivative works. Better understood as the right to modify, alter or change the work. This includes the right to permit others to change the work, such as a translation of a book or to permit others to recast the work in another medium, such as a motion picture version of a best-selling book.
- Right to publish. Publication is the distribution of copies to the public for sale, further sale, distribution, rental or performance.
- Right to perform. All public performances must be licensed. Certain exemptions for small retail establishments and restaurants that perform music exist, as do exceptions for charitable concerts and the performance of music during religious services.
- Right to display. This applies mainly to works of fine art. However, any sale, gift or other conveyance of a copy transfers with it the right to display that copy.
- Moral Rights. The right to be known as the author of the work, or to object to any change, alteration or mutilation of the author’s work which the author feels is prejudicial to his/her honor or reputation. In the United States, this only applies to works of the certain works of visual arts issued in limited editions, and may only be asserted by the author during his or her lifetime.
Once a work is fixed in a tangible form, no other action is required to secure copyright protection. So, virtually anything, from your “selfies” to a doodle in your notebook, is protected by the Copyright Law. Registration is still a very good idea if you intend to distribute or market your work.
Why is it a good idea? Consider the Copyright Office as the “safe deposit box” for artistic works. Once registered, it is proof that you created this work, in this format, as of this date. This can be very useful if someone later claims that you have copied something from them. Mostly, the copyright registration gives you certain advantages if you have to file an infringement lawsuit.
- A suit for copyright infringement cannot be commenced unless copyright registration has been made. This does not mean that a suit cannot be filed if the infringement occurs before registration, only that the formality of a registration is required before the suit can be filed. Failure to file before infringement only affects the ability to elect certain remedies.
- The registration certificate is regarded as good evidence of the validity of your copyright in copyright infringement litigation.
- Registration gives you the ability to recover your costs and reasonable attorney’s fees (within the discretion of the Court), but only if registration has been made before the infringement occurs or within three months of first publication.
- Registration gives you the ability to recover what is known as statutory damages. Statutory damages do not require proof of either how much money you lost or how much money the infringers made infringing your copyright. The Court may award statutory damages for any one infringement on any one work in a range of $750 to $30,000. This range of damages can be increased or decreased based upon how the infringer has behaved. You may recover statutory damages only if registration has been made before the infringement occurs or within three months of first publication.
The Copyright Office accepts submissions for copyright registration online through their eCO Online System. Submissions made this way have a filing fee of $35.00. Otherwise, a paper filing may be made for $50.00 if you print out the pre-barcoded form, or $65.00 for a regular paper filing. Copies may be downloaded from the Copyright Office’s web site.
- Co-ownership only exists when two or more persons intentionally collaborate on the creation of a work. Taking the suggestions of friends does not create co-authorship or co-ownership.
- Once co-authorship/co-ownership exists, anyone with an ownership interest in the work can grant a license for the use of the work as long as:
- The license is non-exclusive; and
- The person granting the license shares the money with the other co-owners
- An exclusive license must be in writing and agreed to by all of the co-authors/ co-owners of a copyright.
Work Made for Hire
- When a person hires and pays another person to create an artistic work, the potential exists that the resulting work may be considered a “work made for hire” under the Copyright Act. The importance of this distinction is that the copyright in a work made for hire belongs to the employer or hiring party, and the hiring party is treated as the author for all purposes, just as if the employer wrote the work alone. Of further importance is that the original author of a work made for hire cannot terminate this transfer of ownership as one can other copyrighted works. A work made for hire falls into two categories:
- A work created by employees within the scope of employment. In this situation ownership passes automatically to the employer or hiring party, unless there is a written agreement to the contrary.
- A work specially ordered or commissioned with an independent contractor if it falls into one of the nine defined categories of works and is accompanied by a written agreement that the work shall be considered a work made for hire. These are:
a. a contribution to a collective work,
b. a part of a motion picture or other audiovisual work,
c. a translation,
d. a supplementary work,
e. a compilation,
f. an instructional text,
g. a test,
h. answer material for a test,
i. an atlas
- Who is an employee? The definitive ruling on the factors governing who is or is not an employee was rendered by the United States Supreme Court in Community for Creative Non-Violence v. Reid. The Court stated that whether a person is an employee can be determined from the law of agency, and that a reviewing court should consider the following factors:
- The source of the instruments and tools used to create the work.
- The location of the work when created, i.e. at employer’s place of business.
- The duration of the relationship of the contracting parties.
- Whether the hiring party can assign additional projects to the hired party.
- The extent of the hired party’s discretion in hiring and paying assistants.
- The extent of the hired party’s discretion over where and when to work.
- The method of payment.
- Whether the work is part of the regular business of the hiring party.
- The provision of employee benefits.
- Tax treatment of the hired party.