Initial ownership of a copyrightable work vests automatically with the "author"
of the work. Where several authors intend a collaborative effort when creating a joint
work, the work belongs to each co-author in equal percentages. Each co-author/co-owner of
the copyright has an equal right to exploit the work, with or without the consent of the
other co-owners, subject to sharing the profits with other co-owners according to his or
her ownership interest. Here is an example:
Dale and Joanne agree to collaborate on a compilation. Dale and Joanne have not entered
into an agreement which would vary their rights provided under the copyright laws (which
rights are provided in default of a contrary agreement). Joanne meets David, who convinces
her to license her rights to him in exchange for his '68 Cutlass Supreme show car. What
does Dale get? He has a right to a one-half interest in the show car.
There are two exceptions to the general rule that the author is the owner of the
copyrighted work. The first is where the author is an employee, hired to author such
works. In this situation, the work is called a "work made for hire" and
the initial ownership vests in the employer. The second exception is analogous to the
first. Here, certain kinds of specially commissioned works, such as contributions made to
a book, anthologies, encyclopedias, periodicals or other collective works, may be treated
as "works made for hire" provided that the parties agree to this in
Whether a court would find that a work is one made for hire, made by special
commission, or that ownership is in the creator is sometimes difficult to predict. This is
in part because the distinctions between works which are considered those made for hire
and those made by special commission are becoming blurred. For example, a work made by an
independent contractor may be considered a work made for hire, despite the nonexistence of
a written agreement. The courts, in cases like this, have sometimes reverted to using a
test very similar to the one used by the IRS in determining whether an independent
contractor should be treated as an employee and thus require the employer to withhold and
contribute certain taxes. The test most often employed to determine copyright ownership is
whether of not the hiring party supervised and controlled the creation of the work. If so,
the work is one made for hire and ownership vests in the employer on creation-- the
employer is considered the "author" of the work.
Other courts have held that the statute means what it says-- there must be a written
agreement in order for a work made by an independent contractor to be considered a work
made for hire. What's the point? The commissioning party should always put in writing his
desire to retain ownership of the copyright in a work.
Tim works as a professional photographer for a skydiving company which specializes in
recording the experiences of their clients as they attempt to wingwalk the company's
specially designed gliders. Tim's specific task is to photograph the facial expressions of
the company's clients as they attempt this daring feat for the first time. Taking such
pictures is therefore within the scope of Tim's employment. They are therefore "works
made for hire" and belong to the company upon their creation. Michelle, on the
other hand, is a professional photographer who fills in in Tim's absence. She is an
independent contractor, being paid a flat fee for each photograph she takes. Although it
would seem from the express words of the copyright statute that Michelle owns the
copyrights in these photos, as the courts which apply the literal language would hold,
other courts would apply the supervision test. If her photographs are supervised or under
the control of the commissioning party, in this case the skydiving company, the copyright
in the photographs belongs to the company as a "work made for hire."
The Transfer of Copyright Ownership:
Ownership and all the exclusive rights associated with ownership vest in the author of a
work immediately upon creation of the work. The author may then freely transfer ownership
of all the exclusive rights in the work to another party, or, alternatively, he may elect
to hold back some of these rights. The author or any owner may transfer any of the
exclusive rights by contract, assignment or by will. Any method of conveyance is
permitted, provided it is (1) in writing and (2) signed by the owner of the exclusive
right conveyed, or the owner's authorized agent. In the case of a transfer of an exclusive
right, all the remedies provided by the copyright law for the protection of that right are
available to the transferee.
The ownership of a copyright is intellectual property-- it is not tangible. Therefore,
copyright ownership is altogether different and separate from ownership of the tangible
object even though the tangible object is the direct result of the intellectual efforts of
the author. Therefore, absent an agreement to the contrary, the transfer of the material
object, i.e., the tangible work of art, does not convey any rights in the copyright. For
example, Randy makes a sculpture by hot-gluing fine cigar butts onto the exterior of a
port wine bottle. He sells postcards of this sculpture at tobacco shops. Jeff buys a
postcard. Jeff is now owner of the postcard itself, and may display it as he desires
(provided he does not broadcast images of it). However, without a written agreement
transferring the copyright, Jeff has no right to reproduce the photograph on the postcard.
Doing so would be a violation of Randy's copyright. This is true even if Randy had
personally sold Jeff the postcard together with the negative of the original photograph
from which the postcard was made.
It is no longer a prerequisite to filing an infringement suit that the assignee wishing
to bring suit record his assignment document in the Copyright Office. However, it is
recommended so as to provide constructive notice of the facts set forth in the assignment
(provided the work is registered). This is done by filing the original assignment document
or a copy accompanied by a sworn affidavit that the document submitted is a true copy of
Sample forms for the sale of a work of art are provided in Appendix D.
Although it is not necessary for the copyright owner to reserve the copyright when he
sells a work of art, it is wise to do so because then the purchaser is put on notice that
the author or owner of the intellectual property (the copyright owner) reserves the
copyright in the work. This may avoid problems which might otherwise arise in the future
by preventing potential misunderstandings.