“But I Own It . . . I Think.” The Joys of Copyright Ownership

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SandBar 7:2, July, 2008 “But I Own It . . . I Think.” The Joys of Copyright Ownership Will Wilkins, J.D. What is copyright ownership? In this series of articles, we have explored many aspects of copyright law but have yet to address, in more than a cursory fashion, some of the most fundamental issues involving copyright ownership such as: who owns the copyright in a work and what does owning a copyright mean? We will take on those issues here. Let’s first review what can be copyrighted. U.S copyright law delineates several types of “works of authorship” which can be protected by copyright. These include: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. If a work does not fit into these categories it is not protected by copyright law (though other means of protection may be available). So, assuming that there is an original work of authorship, as defined above, then what rights does the owner have in the work? In other words, why are we so concerned about ownership? Copyright ownership, like other types of property ownership, carries with it some very strong rights reserved to the owner of the property. These rights include the right to copy the work, to prepare other works based on the original, to distribute copies, and to display or perform the work publicly. In copyright law, these rights are known as “exclusive rights” which means that the owner of the copyright rights not only has the ability to do these things, he has the ability to keep others from doing these things with his works. Who initially owns a copyright? Generally speaking, the author or creator of a work is the owner of the copyright. If the work is a joint work, then the creators become co-owners of the work. Easy enough, right? Not so fast. This general rule may not apply in the workplace, where, in certain situations, the work will be termed a “work made for hire,” and the copyright is owned by the employer. There are two instances where a work may become a “work made for hire.” The first is when it is created by an employee within the course and scope of his employment. In other words, where an employee creates a work as a part of his job, then that work will be owned by the employer. Another type of work may also be a “work made for hire” and thus owned by the employer. It is a work that is specifically ordered or commissioned where the parties expressly agree in a signed written document that the work is to be a work made for hire. But, not all works qualify under this category – it only applies to: contributions to collective works; parts of motion pictures or other audiovisual works; translations; supplementary works; compilations; instructional texts; tests or answers; or atlases. So the owner of the copyright is usually the creator, unless the work is a work made for hire (or unless the rights have been signed away – more on that later). Keep in mind here, though, that we are talking about ownership of a copyright and not ownership of the physical work itself. One aspect of copyright ownership that is very different than the ownership of other types of property is that the copyright in a work and the work itself are two entirely different pieces of property and may be owned by different individuals. For example, when you buy a book in the bookstore, you clearly own the copy of the book you bought, but you do not own the copyright to that book. The copyright ownership remains with the copyright holder, in this case, usually the author or publisher. Also, a special note is in order to those dealing with universities or the federal government, since both alter the relationship between creators and employers. Universities traditionally waive any claim they might have to copyright ownership of faculty and staff work, but often reserve it in certain specific circumstances involving, for instance, specifically commissioned works or substantial uses of university resources. In fact, there is no modern norm regarding how universities determine copyright ownership for works created on campuses, so you must look at the internal policies of each on a case by case basis. Works created by federal government employees are also special cases. Pursuant to Section 105 of the copyright statutes, “[c]opyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” A work of the United States Government is defined as a work created by a government employee as part of his job. Transfers of copyright rights Copyright ownership, like ownership of physical property, can be transferred to another person. This transfer must be in writing and must be signed by the owner or his authorized agent. Similarly, copyright owners can allow others to use exercise their copyright rights (to copy, distribute, perform . . .). These permissions are generally referred to as licenses. The best licenses clearly set forth – in writing - the parameters of the permission. Owners can restrict such permissions to a certain period of time, to a certain geographic boundary, or in any other imaginable way. Ownership matrix The determination of copyright ownership is important from a couple of perspectives. First, if you are a creator of original works, it is critical to know if you will own the works you create in different situations and whether you need to enter into a written agreement to alter these default outcomes set by U.S. copyright law. Also, if you want to use someone else’s works -say to reprint an article- you will need to determine first who owns the copyright in the work. Though simplified here, I generally follow the basic outline set forth above when working through copyright ownership issues. First, ownership generally vests in the creator unless it was a work for hire. If it might be a work for hire, I ask if there is there a chance there is a university or federal government employee involved. By answering these questions, you have at least a good start in finding the copyright owner.
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SandBar 7:2, July, 2008

Will Wilkins, J.D.

What is copyright ownership?

In this series of articles, we have explored many aspects of copyright law but have yet to address, in more than a cursory fashion, some of the most fundamental issues involving copyright ownership such as: who owns the copyright in a work and what does owning a copyright mean? We will take on those issues here.

Let’s first review what can be copyrighted. U.S copyright law delineates several types of “works of authorship” which can be protected by copyright. These include: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. If a work does not fit into these categories it is not protected by copyright law (though other means of protection may be available).

So, assuming that there is an original work of authorship, as defined above, then what rights does the owner have in the work? In other words, why are we so concerned about ownership? Copyright ownership, like other types of property ownership, carries with it some very strong rights reserved to the owner of the property. These rights include the right to copy the work, to prepare other works based on the original, to distribute copies, and to display or perform the work publicly. In copyright law, these rights are known as “exclusive rights” which means that the owner of the copyright rights not only has the ability to do these things, he has the ability to keep others from doing these things with his works.

Who initially owns a copyright?

Generally speaking, the author or creator of a work is the owner of the copyright. If the work is a joint work, then the creators become co-owners of the work.

Easy enough, right? Not so fast. This general rule may not apply in the workplace, where, in certain situations, the work will be termed a “work made for hire,” and the copyright is owned by the employer. There are two instances where a work may become a “work made for hire.” The first is when it is created by an employee within the course and scope of his employment. In other words, where an employee creates a work as a part of his job, then that work will be owned by the employer.

Another type of work may also be a “work made for hire” and thus owned by the employer. It is a work that is specifically ordered or commissioned where the parties expressly agree in a signed written document that the work is to be a work made for hire. But, not all works qualify under this category – it only applies to: contributions to collective works; parts of motion pictures or other audiovisual works; translations; supplementary works; compilations; instructional texts; tests or answers; or atlases.

So the owner of the copyright is usually the creator, unless the work is a work made for hire (or unless the rights have been signed away – more on that later). Keep in mind here, though, that we are talking about ownership of a copyright and not ownership of the physical work itself. One aspect of copyright ownership that is very different than the ownership of other types of property is that the copyright in a work and the work itself are two entirely different pieces of property and may be owned by different individuals. For example, when you buy a book in the bookstore, you clearly own the copy of the book you bought, but you do not own the copyright to that book. The copyright ownership remains with the copyright holder, in this case, usually the author or publisher.

Also, a special note is in order to those dealing with universities or the federal government, since both alter the relationship between creators and employers. Universities traditionally waive any claim they might have to copyright ownership of faculty and staff work, but often reserve it in certain specific circumstances involving, for instance, specifically commissioned works or substantial uses of university resources. In fact, there is no modern norm regarding how universities determine copyright ownership for works created on campuses, so you must look at the internal policies of each on a case by case basis.

Works created by federal government employees are also special cases. Pursuant to Section 105 of the copyright statutes, “[c]opyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” A work of the United States Government is defined as a work created by a government employee as part of his job.

Transfers of copyright rights

Copyright ownership, like ownership of physical property, can be transferred to another person. This transfer must be in writing and must be signed by the owner or his authorized agent.

Similarly, copyright owners can allow others to use exercise their copyright rights (to copy, distribute, perform . . .). These permissions are generally referred to as licenses. The best licenses clearly set forth – in writing - the parameters of the permission. Owners can restrict such permissions to a certain period of time, to a certain geographic boundary, or in any other imaginable way.

Ownership matrix

The determination of copyright ownership is important from a couple of perspectives. First, if you are a creator of original works, it is critical to know if you will own the works you create in different situations and whether you need to enter into a written agreement to alter these default outcomes set by U.S. copyright law. Also, if you want to use someone else’s works -say to reprint an article- you will need to determine first who owns the copyright in the work.

Though simplified here, I generally follow the basic outline set forth above when working through copyright ownership issues. First, ownership generally vests in the creator unless it was a work for hire. If it might be a work for hire, I ask if there is there a chance there is a university or federal government employee involved. By answering these questions, you have at least a good start in finding the copyright owner.