Copyright Ownership Law (Overview)
For our purposes, there are basically three types of copyright ownership categories found on university campuses:
• Joint
—Employee
—Independent Contractor
• Academic Exception to the Work for Hire Doctrine
It is almost always better to be the copyright holder than not. As the copyright holder, you possess a bundle of rights with respect to the work that include copying, modifying (making derivative works), distributing, displaying, and publicly performing it. If you are not the copyright holder, then you will need to either find an exception in the copyright act that allows your proposed use or obtain permission or a license. This includes your "own" work, if you have transferred the copyright to another entity, like a publisher. So keep that in mind the next time you sign away your rights to your work (a transfer of copyright must be in writing and signed by the holder).
Under U.S. copyright law, the creator or author of a work is usually considered the initial owner of the copyright to that work. §201(a). Remember that "ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object." §202 This means that just buying the book or photograph does not make you the copyright holder of the book or photograph.
Joint copyright ownership arises when two or more authors contribute copyrightable expression with the intent that it be combined into a single work. Each shares ownership of the entire work. Each can exercise any of the rights of the copyright owner and can transfer or license the work. The only duty joint owners owe to each other is to account for any profits associated with the work to the other joint owners.
| Practice Pointer: If this sounds a little squishy to you, you're not alone. It can be unnerving to think that your joint owners can do anything they like with the work without having to check with you first. Even though your partnership may continue in a friendly and respectful state, sometimes it doesn't happen that way. To avoid any such parting of the ways, it might be a good idea to write out an agreement about how decisions concerning the future of the work will be made and anything else you'd like to nail down. |
Under the copyright act, there are two categories of "work for hire".
The first category is called employee work for hire. In this category, if a work is prepared by an employee within the scope of his or her employment, it is a work for hire. The employer is deemed to be the "author", and, as such, is the immediate and initial copyright owner.
In the second category, the creator is often referred to as an independent contractor. In this situation, the creator is not an actual employee but instead is specifically hired or commissioned to create a work for the employer and the employer desires to hold the copyright to the work. In order for the work to be a work for hire, the work must fall within one of the enumerated categories and the parties must sign a written agreement in advance stating that the work is going to be a work for hire within the meaning of the copyright act.
The work for hire categories are:
A work specially ordered or commissioned for use
• as a contribution to a collective work
• as part of a motion picture or other audiovisual work
• as a translation
• as a supplementary work
• as a compilation
• as an instructional text
• as a test
• as answer material for a text
• as an atlas
A "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes and indexes.
An "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.