Introduction
Someone who owns a copyright
has certain legal rights, in many ways just as someone who
owns other types of property has ownership rights.
Whether intangible property like the copyright in a song or
tangible property like a house or car, ownership essentially
allows the owner of property to control the use of their
property.
Ownership of property can be
transferred (sold or given away) to someone else.
Additionally, you can allow someone to use your property and
can specify how the property can be used or place
restrictions on its use. Allowing someone to use a
copyrighted work involves issuing a
license
to use the work.
| In many
situations, in order to earn income, authors transfer
copyrights in the works they create to
publishers that are
better able to make works commercially available to the
public. However, unlike when someone sells physical property
such as a car, when authors sell copyrights, they usually
retain a right to receive
royalties for the use of the works they create. |
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Ownership of a copyright
arises automatically the moment a work is created as long as
it satisfies the requirements of originality and fixation. A
very common misconception is that you have to apply for a
copyright. Although there is a
registration system for
copyrights in the U.S. (as well as most other countries) and
registration can provide some important benefits, YOU DO
NOT HAVE TO REGISTER A COPYRIGHT TO OWN ONE. Now that
we've hopefully cleared up one misconception, let's
consider exactly who can own a copyright.
Initial Ownership
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In
general, the creator (or author) of a work is the
initial owner of the copyright in the work.
17 U.S.C. §201(a). The exception is when a work is
created as a
work made for hire discussed
below. In most
situations, it is obvious who the author of a work is.
However, sometimes authorship is not totally clear.
The Copyright Act specifies that the author of a work
is usually the person who creates the work by
translating ideas into some type of fixed, tangible
expression.
17 U.S.C. §102. |
Question: What if more than
one person contributes to the creation of a copyrighted
work?
Joint Works
It is fairly common for more
than one person to
contribute to the creation of a work. For example, suppose
that a band consisting of
5 members composes a song with each band member contributing
at least to some extent. Who owns the song and, if more than
one person, how much of the song does each
of person own? What if one of the band members contributed much more than the rest?
These questions are answered by provisions in the Copyright
Act covering
joint works.
Under copyright law, the authors of a joint work
are co-owners of the work's copyright.
17 U.S.C. §201(a). The Copyright Act defines a
joint work as "a work prepared by two or more authors
with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole."
17 U.S.C. §101. The key to joint works is that each
contributor must have the intent to combine
his or her contribution with someone else's
contribution to form a single work.
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Example: Elton and Bernie create a song, with
Elton composing the music and Bernie writing the
lyrics. |
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Result: Assuming that Elton and Bernie both
intended that their contributions (Elton's music &
Bernie's lyrics) would be combined to create a
song, the song is a joint work and Elton and
Bernie jointly own the copyright. |
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Most commonly,
joint works are the result of more than one
person working together (collaborating) to
create a work. However, this is not always
the case. Although the law requires that there
must be intent to combine contributions, that
does not mean that co-authors have to actually work together at
the same time and place
as long as each intends its contribution to be
combined with someone else’s contribution to
form a single work.
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Case Summary:
Marks v. Vogel |
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A songwriter sold lyrics
to a publisher who had someone else write
music to accompany the lyrics. |
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Ruling: The court held that
the resulting song was a joint work
even though the co-writers didn't even
know each other stating: "It makes
no difference whether the authors work
in concert, or even whether they know
each other; it is enough that they mean
their contributions to be complementary
in the sense that they are to be
embodied in a single work to be
performed as such." |
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In addition to the
intention to combine contributions, some courts have also
held that each contributor
must make an independently copyrightable
contribution in order to have a joint work. This
requirement is intended to assure that someone who
makes minor, unimportant contributions to a work is
not treated as a co-author.
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Example: A recording artist changes
the title of a song she did not make any
other contribution to the song. |
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Result: The artist is not a joint
author of the song since her only contribution
was the title and titles are not copyrightable. |
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While a
collaborator's contribution must be
independently copyrightable, contributions of
collaborators do not have to be equal. The Copyright Act
provides default rules governing joint ownership
which apply when co-owners do not have any
written agreement governing joint ownership. The
law basically allows co-owners to have any rules
governing their ownership as long as
they put agreement in writing. However, many
co-authors do not have written agreements and
the Copyright Acts rules will therefore apply.
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This famous songwriting duo agreed that all
songs they worked on together would be owned
by them jointly in equal shares regardless of
their actual contributions. Even when
Lennon or
McCartney wrote a song alone, the other
would be credited as a co-author.
Hey Jude, for example, was mostly
written by McCartney. More commonly, one of
them would come up with an idea or a part of a
song and the other would help finish it or
refine it. Sometimes, they would combine each
other's incomplete songs or song ideas. |
Equal, Undivided
Ownership Interests
The most
important rule provided by the Copyright Act is
that joint authors are
co-owners of copyright in equal, undivided
interests.
17 U.S.C. §201(a). This means that each co-author
owns an equal share of the entire work regardless of
how much each actually contributed to the
creation of the work.
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Example: Five band members each
contribute to the creation of a song. |
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Result:
Unless they have a written agreement
specifying otherwise, each band member
owns one-fifth of the song. |
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What if one
person composes the music to a song and another
person writes
the lyrics? Again, unless the authors
have a written agreement specifying
otherwise, they will each own
50% (an equal, undivided share) of the song.
This rule is based on the assumption that co-authors will not usually discuss how
ownership should be shared and the most
logical assumption is that co-authors contribute
relatively equal portions. Its
therefore very important that if that's not
true, co-authors have a written agreement
stating how they will share ownership.
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Case Summary:
Papa's-June
Music v. McLean,
921 F. Supp. 1154 (S.D.N.Y 1996) |
| In 1989,
Ramsey McLean sent some poems to
Harry Connick, Jr., who
added music and recorded the songs on an album. Connick
and
McLean entered into a co-publishing contract
which provided that Connick would own
70% of the songs and McLean would own 30%.
So far, so good. Several
years later, McLean sent Connick new
poems which Connick added music to and
recorded. They signed an amendment to
their co-publishing contract which
provided for the same ownership
split (70/30) as before. Connick
and McLean followed the same
procedure a third time except that
they didn't have anything in
writing about the songs that
resulted from their contributions.
McLean notified Connick that he wanted
50% for these songs and Connick sued
claiming that their prior
agreement applied. |
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Ruling:
Poor Harry (or his lawyer) screwed
up here by not having anything in
writing covering ownership of the
third group of songs. The court
ruled that
McLean was a joint owner of the copyrights
and since there was no written
agreement specifying a different
arrangement, the Copyright Act's
rule applied and McLean was
entitled to an equal, undivided
share of 50% in these songs. |
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Right to License
Under U.S.
copyright law, each joint owner of a copyright has
the right to use the work or to authorize others to use
the work. This means that any joint owner
can issue licenses authorizing others to use the
work even without the consent of
other joint owners.
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Example: Three songwriters
create a song. One of the writers
decides to issue a license to a friend
oh hers, allowing her to record the
song. The other two writers want to
license the song to someone else. |
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Result: Since each writer is a
joint owner of the copyright, they can
each issue licenses to anyone they
want. The only exception is that they
would all have to agree to issue an exclusive license. |
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Unlike
the United States, many
countries require all joint
owners to consent to the issuance of licenses.
Even in the U.S., some licensors prefer
that all co-owners of a copyrighted work
agree to a license. This can be
important if the licensor will use the
work in any countries other than the
U.S.
Joint Authorship Problems
Disputes frequently
arise between co-authors of copyrighted works such
as songs, usually as a result of
authors who collaborate, but fail to discuss
what their ownership interests will be. Its very
easy to avoid such disputes simply by having a
written agreement although few co-authors do so.
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Case Summary:
In 1999, singer/songwriter
Sarah McLachlan was sued by Daryl
Neudorf who was hired by McLachlan's
record company to work with her on
pre-production of her first album,
Touch . Neudorf claimed he
co-wrote 4 songs with McLachlan while
McLachlan contended that Neudorf was
merely a musician and producer and that
his contributions to the songs did not
constitute authorship.
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Ruling: The court found that although Neudorf did make contributions
to the songs, his
contributions to 3 songs were not sufficient to
constitute original authorship. As to the fourth
song, the court believed Neudorf had contributed original
authorship , but still held that it was not a
joint work since there was not sufficient
proof of
mutual intent to co-author the song between
Neudorf and McLachlan. Optional: For more
on this case, see
this article. |
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Works Made For Hire
As discussed previously, the
creator of a work is usually the owner of the copyright in
the work created. The exception to this rule is when a work
is created as a "work made for hire."
Basically, a work made for hire is created in certain
circumstances when the actual creator creates a work on
behalf of someone else. Specifically, there are two
situations in which works can be created as works made for
hire:
1. Works Prepared by Employees
Within the Scope of Employment
If an
employee creates
a copyrighted work as part of his or her job, the
employer
(rather than the employee/creator) will own
the copyright. In this situation, it is not necessary to
have a written
contract that says copyrighted works created by the
employee will be created as works made for hire. Instead,
work for hire status is presumed in an employment
relationship.
| Example:
A
computer programmer who is employed by
Microsoft contributes to the creation of a
new
software program. |
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Result: The copyright to the software
belongs to Microsoft rather than the programmer
since the programmer is an employee of Microsoft
and created the program as part of her
employment. |
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Sometimes people are hired to
work for someone else, but not as employees. Instead, their
relationship is that of a hiring party and an
independent
contractor. The distinction between employees and
independent contractors has important legal consequences
beyond the scope of this course. A simple way of
understanding the difference is that employees work for
their employers while independent contractors work for
themselves (although they are hired to perform work for
others).
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Case Summary: A famous Supreme Court case,
Community for
Creative Non-Violence v. Reid,
490 U.S. 730 (1989), involved a dispute over
copyright ownership of a sculpture. The
sculptor claimed he was an
independent contractor rather than employee
and therefore owned the copyright to the
sculpture. |
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Ruling: The Supreme Court held that the
sculptor was an independent contractor, based on
an evaluation of various factors which are
indicative of which party has primary control
over the work performed. Factors looked at
include: |
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Skill
required to do the work
Source of
tools & materials used to create the
work
Location
of work performed
Duration
of relationship
Right to
assign additional projects
Hired
party’s discretion over when & how long
to work
Method of
payment
Which
party decides whether assistants will be
used & which party pays them
Part of
regular business of hiring party
Whether
party creating work is in business for
itself
Whether
hired party receives employee benefits
Tax
treatment of hired party
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Generally, it is safe to
assume that an employment relationship exists when
a hired party is paid a salary, receives benefits
from the hiring party (medical insurance, etc.), and the
hiring party withholds taxes and makes social security
payments. If it is unclear
whether an employment relationship exists,
you can always enter into a written contract giving
the hiring party
copyright ownership or licensing rights to
use the copyrighted work. A disadvantage to obtaining
copyright ownership by a contract is that the author has a
right of
termination.
2. Specially Ordered or
Commissioned Works
When a
copyrighted work is created by an independent
contractor, it may be a work made for hire, but
only if two conditions are met. First, the parties
must have a written
contract stating that the
work is created as a work made for hire.
Additionally, the work must fit one of the
following categories:
- Contribution
to collective work (e.g., an article in a
magazine)
- Part of
motion picture or other audiovisual work
(e.g., a screenplay)
- Translation
- Supplementary
work - work prepared for publication as a
secondary part of a work by another author
such as a foreword, pictorial illustration,
musical arrangement, bibliography, appendix,
etc.
- Compilation
- Instructional
text (e.g. a manual for stereo equipment)
- Test (e.g.,
ACT, LSAT)
- Answer
material for a test
- Atlas
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Example: A movie
producer hires a music composer to write soundtrack
music for a motion picture. |
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Result: If the producer has
the composer sign a contract, the
music could be composed as a work
for hire and the producer rather than the composer
would own the copyright since the music
is created to be part of a motion picture. |
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Transferring Copyright Ownership
Like other types of
property, copyrights can be
and are frequently transferred (sold). For instance, a songwriter
might
transfer the copyright in songs he or she writes to music publisher
in return for the publisher's services - licensing use
of the songs, collecting license fees. Even though the
songwriter would not retain ownership, he or she would
typically be entitled (according to a contract with the
publisher) to receive royalties based on the use of the
songs.
According to
section 201(d)(1) of the Copyright Act, "ownership of
copyright may be transferred in whole or in part
by conveyance, by operation of law, by
will or
by
intestate succession." This means if a
copyright owner dies, the copyright will be
automatically transferred to whoever is
designated in the copyright owner's will or
according to state law if the copyright owner
did not have a will. If a copyright owner goes
bankrupt, the copyright will generally be
part of the bankruptcy estate used to pay off
debts to creditors. Other than these types of
situations when the law automatically transfers
copyrights, you must have a written
contract to transfer a copyright. This
requirement is practical since the written
document serves as proof of transfer and it also
helps to ensure that an author will not
inadvertently give away a copyright.
Although its not
required, transfers of copyright can be recorded
with the
Copyright Office. This creates a public
record of the transfer (search recorded
transfers online
here)
and gives a
transferee priority over any subsequently alleged transfer.
Termination of
Transfers
The 1976 Copyright
Act provides authors with a right to terminate
transfers of copyright. In other words, an author
can transfer ownership of a copyright to someone
else and later terminate that transfer and get back
ownership of the copyright. If you think about it,
this might seem very strange since with other types
of property, once you transfer ownership, its gone
and you can't get it back unless you buy it back.
The reason this strange provision exists is to
protect authors from selling copyrighted works
shortly after creation when their value is not
known.
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Example:
A songwriter wrote a song in 1952 which
he transferred to a publisher in return
for $250. The publisher licensed the
song for use in a television show which
ran for several years before going into
syndication. The song is included in
each episode of the T.V. show which was
broadcast for over 3 decades. Each
broadcast generated a performance
royalty for the song and the songs has
therefore likely earned over a million
dollars. |
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Result:
Unfortunately, the songwriter earned
only the $250 paid in 1952. Since his
contract did not obligate the publisher
to pay royalties, he never received any
additional income. This is the type of
situation the termination right was
intended to apply to. The termination
right would allow the author (or his
heirs) to terminate the transfer of
copyright and benefit from the value of
the copyrighted song from that point
through the remainder of its copyright
term., |
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There are actually
two different termination rights, one that applies
to works transferred beginning in 1978 and another
that applies to certain works transferred before
1978 and subject to a renewal right under the 1909
Copyright Act. The termination provision is a bit
complicated, but the main things to understand are:
you can
terminate a transfer at any time
during the 5 year period between 35 to 40
years after the transfer was made; and you
must give written
notice to the transferee 2-10 years before the
termination date (and file a copy of the
notice with the Copyright Office).
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Example:
Susie Songwriter assigns
(transfers) the copyright in a song to
Hits R Us publishing company in
1980. When can Susie terminate the transfer
and regain the copyright to the song? |
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Result:
Susie can terminate at any time between 2016-2020
(35-40 years after the transfer). She
can give a termination notice as early
as 2006 (10 years before 2016) and as
late as 2018 (2 years before 2020), but
must give at least 2 years notice so if
she doesn't give notice by 2018, she is
too late. |
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Additional (Optional) Online
Materials
Stanford.Copyright & Fair Use - Copyright Ownership: Who
Owns What?
Bitlaw: Copyright Ownership
Termination of Transfers
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