Sunday, July 24, 2011

Copyright in Collective Works

So, say you and your four best friends are all poets.  You each write a few poems.  Among your poems is a limerick in which you extoll the virtues of drinking beer.  It's a really nice limerick.  All of the poems are really nice.  Your friend, Cole Lecter, gathers all the poems together and publishes them in a collection.  So, who owns the copywrite?

Well, fortunately, the drafters of the U.S. Copyright Act thought about this situation.  Section 201(c) of the Copyright Act provides that
Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
With this provision, it is clear that the presumption is that each of the contributors retain the copyright in his own works of authorship.  Thus, your limerick belongs to you.  What Cole has in this case (unless the parties agree otherwise) is the privilege to reproduce and distribute the individual works as part of his collection.  Cole does own the copyright to any work of his own authorship that is included in the collection.  For example, Cole's expression or contribution might include the selection and arrangement of the separate works, or the preface that he wrote himself. 

Is it possible for copyright rights in a single work to be owned by different folks?  Next time, we'll talk about that.  In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Tuesday, July 19, 2011

The Boss Might Own the Copyright: Works For Hire

In my last post, i talked about how the usual situation is that the initial owner of the copyright of a work is the author of the work.  A very important exception to this "usual situation" is when a work is "made for hire" according to the Copyright Act. According to the Copyright Act, section 101:

A “work made for hire” is — 

(1) a work prepared by an employee within the scope of his or her employment; or

(2) 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, 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, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

It is important to determine if an artist who is making a work for another person is working more like an employee of "the boss", or if he is acting as an independent contractor on a specially ordered or commissioned work. If he is an employee, the initial copyright owner is the employer. If e is not an employee, then the initial owner of the copyright is the artist unless the parties agreed otherwise in writing. Generally, determining whether an artist is an employee ( and the work a work for hire) or an independent contractor is based upon a consideration of several criteria, including the following:

(1) the level of skill required- greater required skill weighs against a work for hire.
(2) the source of tools and instruments used- if provided by the artist, less likely to be found a work for hire.
(3) the location of the work- if done on artist's premises, less likely to be a work for hire.
(4) the duration of the relationship between the boss and the artist- shorter duration is less likely to be a work for hire.
(5) the degree to which the boss has the right to assign the artist to other tasks- if the boss can do this, more likely to be a work for hire.
(6) the artist's discretion in setting his hours- if the artist can do this, more likely not a work for hire.
(7) the method of payment- if the same as other employees, more likely a work for hire.
(8) the artist's role in hiring and paying any needed assistants- if he hires and pays assistants, less likely to be a work for hire.
(9) whether the work is part of the regular business of the boss- if it is, more likely to be a work for hire.
(10) whether the boss is, in fact, in business- if not, more likely not a work for hire.
(11) whether the boss provides employee benefits for the artist- if he does, more likely a work for hire.
(12) whether the boss withholds taxes from the artist's pay- if he does, more likely a work for hire.

The creator of a work for hire has very few rights under copyright law. Thus, it is very important to understand who owns a commissioned work and generally best to get it in writing from the start.

So who owns the copyright in a collection of stories or photographs with many different artists? I'll talk about that next time. In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Wednesday, July 6, 2011

Who Owns a Copyright?

I hope you all had a nice 4th of July holiday.  Over the next few days, I'm going to write about ownership of copyright.  There are several different situations that need to be considered. 

Generally, the initial owner of the copyright of a work is the author of the work.  The author can exploit the work himself, he can transfer part of his rights to another, or he can transfer all of his rights to another.  But who is the author?  Generally, the author is the person who conceives of the copyrightable expression and fixes it into a tangible form, or has someone else to fix into a tangible form.  One interesting situation is when a work is made for hire.  In that case, the one who hired the worker who actually made the work is considered the author.  I'll talk about works for hire in my next blog. 

Another interesting ownership question involves ownership in joint works.  A work prepared by two or more authors who intend that their work be merged into inseparable or interdependent parts of a single work is considered a joint work.  The emphasis is on the intent of the authors at the time each of them made his contribution to the work.  The different authors don't need to work at the same time, or even know each other, but must intend to contribute to a single unitary work at the time he makes his contribution. 

Joint authors generally each own equal undivided interests in the joint work.  For example, two joint authors would each own one-half interest in the entire work.  Each owner is entitled to exploit the copyright without seeking any permission from the other, but will have to share the profits.  Note that this situation differs from one where two authors each own different copyrights that are exploited together.  For example, if A owns the rights to the lyrics of a song, and B owns the rights to the music, and either exploits the combination without the other's permission, he will be liable for infringement of the other's copyright.

Note that the ownership by joint authors of equal shares can be varied by agreement of the parties.  If you have any questions about the copyright ownership, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.