Copyright Ownership

Copyright ownership gives the holder of the copyright in an original work of authorship six exclusive rights:

  • The right to reproduce and make copies of an original work;
  • The right to prepare derivative works based on the original work;
  • The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
  • The right to publicly perform the work;
  • The right to publicly display the work, and
  • The right to perform sound recordings publicly through digital audio transmission.

The categories of things that count as an original work of authorship include literature, computer programs, dramatic scripts, choreographed or pantomimed work, motion pictures, video art, graphics, sculptures, and architectural plans. Each of these categories is broadly construed. When any of these rights are infringed with regard to an original work of authorship, the holder of the rights may bring a copyright lawsuit to enforce those rights.

However, any of these six rights or some aspect of them can be transferred. Two methods of transfer are licensing and assignment. If the transfer is on an exclusive basis, it has to be in writing and signed by the copyright owner or an authorized agent. Nonexclusive transfers of rights need not be in writing.

Who Owns the Copyright?

The author owns the rights associated with an original work of authorship. The “author” is usually the person who creates the copyrightable expression and actually fixes it in a tangible medium.

However, some original works of authorship are “works for hire.” In the most straightforward cases, this means that an employer or a commissioning entity has a contract with the creator to create the work, and the employer paid for the work and took the financial risks associated with it. The employer is the initial owner of the copyright and has the six exclusive rights mentioned above.

Copyright in works created by an employee within the scope of employment, primarily in the workplace, and on the clock is likely to be found to be work for hire. Courts will look at whether the work was started in order to serve the employer. Similarly, a work that is created by an independent contractor can be considered a work for hire if the parties expressly agree it is for hire in a written, signed instrument, and the work is a contribution to a collective work, part of a motion picture or audiovisual work, a translation, a compilation, a supplementary or instructional text, a test or its answers, or an atlas.

In some cases, two or more authors come together to create a joint work or a collective work. Who owns the copyright then? Assuming that the authors intended to merge their contributions into an inseparable whole, the authors of a joint work are co-owners of the copyright unless there is an express assignment of copyright.

An author of an individual work in a collective work, such as an anthology, maintains his or her copyright in his or her own contribution unless there is a contract specifying otherwise. However, the compiler or editor of a collection keeps copyright in the portion of the work he or she authored as well as the selection and arrangement of the works.

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