The Law of Copyright Ownership
Copyright Ownership Law (Overview)
Under our copyright law and for our purposes, there are basically three main types of copyright ownership categories of interest.
• Joint
—Employee
—Independent Contractor
• Academic Exception to the Work for Hire Doctrine
As a general statement, it is always better to be the copyright holder than not. As the copyright holder, you are in control of what uses are made of the work since it is the copyright holder who possesses the bundle of rights with respect to the work that include copying, modifying (making derivative works), distributing, displaying, and publicly performing it. If you are not the copyright holder and you wish to exercise one of those rights, you will need to either find an exception in the copyright act that allows your proposed use or obtain permission from the actual holder. This includes your "own" work, if you have transferred the copyright to another entity, like a publisher. It can be a rude awakening to discover one day that you cannot make multiple copies of "your" article for your class, post your article on your personal web site, course site, or e-reserves, or incorporate large portions of your article into a follow-up work without obtaining permission from the publisher to whom you transferred your copyright. So keep that in mind the next time you sign away your rights to your work - you will know when you are doing it because a valid transfer of copyright must be in writing and signed by you to be valid.
Under U.S. copyright law, the creator or author of a work is usually considered the initial owner of the copyright to that work. [§201(a)]. Remember that "ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object." [§202] In other words, simply owning the book, journal, photograph, movie, etc. does not give you any intellectual property rights, including copyright, to that work. Conversely, even if you are the copyright owner of a particular work, if someone else owns the actual physical work, you have no authority to require the work be given or sold back or to be allowed access to the work.
Joint copyright ownership arises when two or more authors contribute copyrightable expression with the intent, at the beginning of the project, that their individual contributions be combined into a single work. Each contributor shares ownership of the entire work [an undivided interest in the whole]. It doesn't matter how much each contributed; they all own the whole of the work. Additionally, it is necessary that they contribute actual copyrightable expression; simply suggesting ideas or possible improvements, valuable as that might be, is not enough to confer joint copyright ownership. Each joint holder can exercise any or all of the rights of the copyright owner and each can transfer or license their interest in the work. A joint holder does not have to obtain permission from fellow joint holders before doing anything with or to the work, such as allowing it to be used in other works or modified/re-written, even if their fellow holders might object. The only duty joint owners owe to each other is to account for any profits associated with the use of the work to the other joint owners.
| Practice Pointer: If this sounds a little squishy to you, you're not alone. It can be unnerving to think that your joint owners can do anything they like with the work without having to check with you first. Even though your collaboration may continue in a friendly and respectful manner, sometimes it doesn't happen that way. To avoid any such potentially unpleasant parting of the ways, it might be a good idea to write an agreement setting forth how decisions concerning the future of the work will be made and anything else you'd like to nail down. |
• Work For Hire
Another type of copyright ownership created by our Copyright Act is "work for hire" and is designed to address employer/employee situations and works people are specifically hired to create as independent contractors.
The first category is the typical employee work for hire. Not surprisingly, employer who hire individuals as steady employees with a regular paycheck, benefits, job duties, regular hours at a place of work, etc., expect to own both the physical and intellectual property rights to the works those employees create within the scope of their employment. This shouldn't be a surprise - if Microsoft or IBM hire you to write software programs, they expect to hold the rights to those programs. Under this section of the Copyright Act, in fact, the employer is deemed to be the "author" right from the beginning, and, as such, is the immediate and initial copyright owner.
The second category of work for hire is the independent contractor provision. Here, the creator of the work is not a true, regular, actual employee but, instead, is specifically hired or commissioned to create something for the employer. The employer desires to hold the copyright to the work. But unless the work falls within one of the categories listed below and the parties sign a written agreement, in advance, stating that the work is going to be a work for hire within the meaning of the copyright act, the independent contractor will hold the copyright. If this seems bizarre or contrary to common sense, consider the times you have your photograph or your childrens' photograph taken by a professional photographer. The photographer is an independent contractor that you have specifically hired to take this photograph. You pay for his or her time and copies of the photo - but you did not become the copyright holder to that picture. The photographer is and if you want more copies, you must buy them.
The UNCC Copyright Policy specifically addresses the use of independent contractors by university units or employees in Section V.C. as follows:
"C. Works by Independent Contractors.
Each University unit or department entering into arrangements for work to be produced by an independent contractor must execute a written contract, signed by an authorized University official, which includes a provision that the University shall own copyrighted works produced by the independent contractor. Any exceptions must be approved by the appropriate vice chancellor or design."
The work for hire categories are:
A work specially ordered or commissioned for use
• as a contribution to a collective work,
• as 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 text
• as an atlas
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.
An "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
