Copyright eBook: Appendix | USA

Mistake 1 - Thinking you own copyright if you pay someone to produce work for you.

The general rule is that the person who creates a work of authorship becomes the owner of the copyright in the work, but there is an exception for a work made ‘for hire'.

In the situation where a work is specially ordered or commissioned then the ‘author' is the person who hired the actual creator of the work but only if the parties agree in writing that the work is a work made for hire - there are limited ‘hire' situations as seen in the next paragraph.

The Copyright Act 1976 limits the work made for hire doctrine to two specific situations: a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned for use  (as a contribution to a collective work, as a 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 test, or as an atlas), but even then only if the parties agree in writing that the work is a work made for hire.

Mistake 2 - Assuming using freelancers is the same as using employees.

In a work made for hire situation, the ‘author' of the work is no longer the individual who created the work.  Instead, the ‘author' is deemed to be the person who hired the creator of the work.

If the work does not fall within these categories, or if there is written agreement to the contrary (or no written agreement) then the authorship stays with the creator.

Mistake 3 - not understanding that joint ownership could leave you in a stalemate situation.

If there is no separate agreement, authors own the work jointly and equally. It is not necessary, that the contributions be equal in effort or value. The only requirement is that both authors have the intention that the works are to be "merged into inseparable or interdependent parts of a unitary whole."

If a joint work does exist, then both authors are co-owners of an undivided interest in the entire work. One of the authors can use the entire work as they please without seeking permission from the other joint author(s).

However, if a single author makes a profit through the exploitation of the joint work, then the profits will have to be shared with the other joint authors.

So, it makes sense for joint owners to clarify joint ownership interests in a written agreement - addressing such issues as ownership and use.

Need to Register Copyright?

There is no publication or registration or other action required to secure copyright.  Even though this is so, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. 

Copyright is secured automatically when the work is created.

Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection.

Copyright registration is highly recommended especially in order to file a lawsuit claiming copyright infringement in the US; before such a lawsuit can proceed the work must have been registered with the Copyright Office at the Library of Congress.

Formalities to transfer copyright ownership

Any or all of the copyright owner's exclusive rights may be transferred, but the transfer is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or an owner"s duly authorized agent. 

Transfers of copyright are normally made by contract. The Copyright Office does not have any forms for such transfers. The law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.

Real life case

Community for Creative Non-Violence v. Reid, was a U.S Supreme Court case regarding ownership of copyright.

Facts

A non profit organization known as Community for Creative Non-Violence that wanted to bring attention to the problem of homelessness, arranged for one James Earl Reid to produce a sculpture.  They wanted a depiction of homeless people in a nativity setting with specific wording on the sculpture.  

They made the base, suggested people to use as models, and suggested changes throughout the process. Neither party raised the issue of copyright, nor did the parties put anything about it in writing.  Community for Creative Non-Violence then claimed to own copyright in the sculpture.

Opinion of the Court 490 U.S. 730 (1989)

The issue for the court was whether the sculpture fell within the ‘work-for-hire' doctrine, enabling the Community for Creative Non-Violence to be deemed to be the author of the sculpture.

The Court noted that there are two distinct categories of persons to whom the work-for-hire doctrine applies: employees, or contractor for nine specific types of work, with written acknowledgment. Congress having left out a definition, "employee" was understood to be common-law master-and-servant definition.

The Court then looked to traditional factual determinations about the relationship between the parties (hired party's control over accomplishment of the task; provision of tools; right of artist to employ his own helpers; whether creation was in hirer's line of business; hirer's control over when and how long hired party is to work; method of payment; tax treatment of the hired party, etc.).

Based on this examination, the Court found that the work was not a work-for-hire, and copyright in the sculpture therefore vested in Reid.