Copyright Ownership

The previous post explained that copyright is a type of protection that entitles authors of “original works of authorship” that are fixed in a tangible medium to six exclusive rights.

This post will discuss copyright ownership.  In most cases, the author is the person who created the copyrightable work and puts it in a tangible medium. However, two separate scenarios can occur as well.

In some instances, two or more authors may collectively create an original work, and assuming the intent is to merge the separate contributions into an indivisible and interdependent whole, the authors of the united work become co-owners of the copyright unless otherwise expressed. However, if multiple authors contribute to a collective work, that does not come to form a unitary whole, such as an anthology, each author’s individual contribution is distinct from the copyright ownership of the collective work as a whole. Simply put, in such an instance, each author is granted copyright ownership of his individual work, whereas the authors of a united and indivisible whole co-own the entire work.

In another scenario, “works made for hire,” are an imperative exception to the general rule of copyright ownership. In this case, the original creator is not the author of the work, nor is he the owner of the copyrighted work. Whether a work is made for hire is decided by the facts that exist during the time the work was created.

There are two situations in which a work may be made for hire. First, a work may be made for hire when the work is created by an employee in the course of his or her regular duties. Second, a work may be made for hire when a third-party contributor and a hiring party enter into a written contract that clearly states that the work is to be considered a “work made for hire” and the work is commissioned or specially ordered for use as a compilation, a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, an instructional text, a test, answer material for a test or an atlas.  Of significance is that an independent contractor, hired for a specially ordered work that is not one of the enumerated types of works, will own the copyright despite a written agreement.  In such cases, the commissioning party must obtain an assignment.

In either work for hire situation, the hiring party that paid for the created work, and agreed to take all the financial risks associated with it, is the owner of the copyright and is entitled to the six exclusive rights that are a product of the ownership. Though these are the situations that may determine a work made for hire, the concept as an entirety can be more complicated and may result in unintended consequences for both parties. A later post will look more closely at the topic and detail the different risks associated with this type of ownership.

In conclusion, generally, the author of an original work fixed in a tangible medium is the copyright owner and entitled to the six exclusive rights that are fixed into ownership. However, a copyright may be co-owned, pieces of a whole, but collective work, may all be separately owned or a work may be created for hire. In any case, there should always be a contractual agreement between all involved parties.

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