December 1st, 2023
December 1st, 2023
The creator of any original work, whether it be a song, poem, or painting, usually holds a copyright in that work under the Copyright Act of 1976. A copyright is a legal right that gives the holder a group of exclusive rights over the work and how it is used. Specifically, copyright holders have exclusive rights to reproduce, perform, and distribute their copyrighted works. However, copyright law is not always straightforward and there are situations where the creator of a copyrighted work may not actually own the copyright to that work. This guide will walk through the ins and outs of who owns a copyright and how a holder of a copyright can transfer some or all of those rights to other parties.
It is important to first establish what copyright is before discussing the rights associated with it.
Copyright refers to the legal rights of the owner of an intellectual property.
Copyright law gives creators of original material the exclusive right to further use and duplicate that material for a given amount of time. When someone creates a work that is viewed as original and required mental activity to create, this product is known as intellectual property that must be protected from unauthorized duplication. Examples of unique creations include art, poetry, song lyrics, graphic designs, novels, and many other such works. The major safeguard used to legally protect intellectual property is copyright.
Not all types of works can be copyrighted. A copyright does not protect ideas, discoveries, theories, or concepts. Brand names, slogans, and logos are not protected under copyright law. For an original work to be copyrighted, it must be in a tangible form. This means that things such as speeches, musical compositions, and ideas must be written down in a physical form to be protected by copyright.
Copyright holders are granted a bundle of exclusive rights under the Copyright Act of 1976. The main rights that are granted by a copyright include:
While these rights are exclusive to the copyright holder, the law allowed copyright owners to be flexible when deciding whether and how to use the rights to their work for their own financial gain. Copyright holders can choose to sell or license any of these rights to other parties at will.
Though the creator of a work is usually the owner of the copyright to that work, there are some notable exceptions to that rule. The two most common exceptions are work created in the context of an employment relationship or a contractual agreement between the creator and another party and works sold to another person or entity.
If an employee creates intellectual property in the course of their work for an employer, the employer automatically owns the copyright to that work as part of the employment relationship unless the parties have a contractual agreement specifying otherwise. For example, a journalist who writes for a newspaper would spend significant time creating new intellectual property in the course of their employment. They might write op-eds, investigative articles, or pieces on current events. All of this work would be original, tangible, and requiring significant mental effort on the part of the writer to create. However, because the journalist is writing these things as part of their employment for the newspaper, the newspaper would own the copyright to all of the journalist's writing done for them instead of the journalist owning the copyright to this work. One exception to this, as mentioned above, is if the employer and employee have a contractual agreement that states otherwise. The journalist could have an employment agreement with the newspaper that states that the newspaper owns the copyright to all of the journalist's writing except any op-eds they write and publish in the newspaper.
Though they are not technically employees, work made by an independent contractor is considered work "made for hire" and is subject to similar copyright rules as work made for an employer. Unless the creator and the client have a contract that states otherwise, the client owns the copyright to the work the independent contractor makes for them as long as it falls under one of these categories:
Works that do not fall into one of the above categories are only considered work made for hire only if they are created by an employee within the scope of their employment relationship with their employer.
Like almost all other ownership interests, copyright is transferable from one party to another. When a creator sells the entirety of their copyright (rather than granting limited use) to another party, the buyer becomes the new copyright holder. Copyrights can, and often are, bought and sold in the United States just like any other type of property interest. This is often how creators are able to make money from their intellectual property. For example, a photographer could sell the copyrights to their photographs to magazines, websites, or books. Those publishers then own the copyright to the photograph they've purchased and can reproduce and distribute the photographs however they like.
When two or more creators prepare a piece of work together while intending to combine their work into inseparable or interdependent parts, the work is known as a "joint work." Common examples of this would be co-authors of a book or co-writers of a song. In this situation, all of the creators are considered joint copyright holders with equal rights to register and enforce the copyright. Unless the joint creators sign a contract stating otherwise, all of the copyright owners have equal right to use the copyrighted work for commercial purposes, provided that the other copyright holders get an equal share of the proceeds from this use.
Joint copyright requires that the creators' contributions to the work be interdependent or inseparable. If authors write a book together wherein the whole book is written by both of them equally, this would constitute a joint work. However, if a book is written primarily by one author but another author contributes a single chapter to the book and is given credit for that specific chapter, this would not be considered a joint work. The second author's contribution is not inseparable or interdependent with the overall book.
There are situations where two or more creators can provide significant contributions to a single work without it being considered a joint work for the purposes of copyright. If at the time of creation, the authors did not intend for their works to be part of an inseparable whole, the fact that their work is then later put together does not create a joint work. Rather, the result is considered a collective work. In this circumstance, each author owns a copyright in only the material they added to the finished product.
As briefly discussed above, when a copyright owner wishes to commercially exploit the work protected by their copyright, they typically transfer some or all of these rights to the party who will be using this work. It is common for the copyright owner to place some limitations on the exclusive rights they are transferring. For example, the owner may limit the transfer to a specific period of time, allow the right to be exercised in only a specific state or country, or require that the right is exercised only through certain forms of media, such as audiotapes, websites, or magazines.
If a copyright holder transfers the entirety of their rights unconditionally and does not retain any of the rights, this is known as an assignment and the transfer is done using a Copyright Assignment document. When only some of the rights associated with the copyright are transferred, this is known as a license and the transfer is done using a Licensing Agreement. This transfer is also sometimes done using a Royalty Agreement if the original copyright owner will receive regular payments known as royalties based on how often the work is used, such as a songwriter who is paid a royalty every time their song is played on the radio or a tv show.
A copyright license can be granted either exclusively or non-exclusively. An exclusive copyright license means that the transferred rights can be used only by the party who has purchased the license and no one else, including the copyright holder who granted a license. The U.S. Copyright Office allows the buyer of an exclusive copyright to record the transfer with their office. This way, the buyer is protected if the original copyright holder tries to later transfer those same rights to another party despite the exclusive nature of the license. If the license allows others, including the copyright holder, to exercise the same rights being transferred by the license, the license is considered non-exclusive.
Copyright laws are essential to protecting the work of creators while also allowing them to monetize their creations by transferring their exclusive rights to other parties. It is important for creators to be aware of when and how they own the copyrights to their work and how they can transfer those rights to others.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.