Ownership

 
 

A sole author holds all the rights in a copyright.  A person who merely acts under an author’s authority to place the copyrighted work in a tangible medium does not hold an interest in the copyright.

Sole & Joint Authorship
Statutory Test for Joint Work

The Copyright Act requires three elements for a joint work to exist: 

(1) at least two authors;

(2) an intent by the authors that their contributions be merged; and

(3) the merger of contributions results in inseparable or interdependent parts of a whole.

Courts examine a variety of factors to determine whether a collaborator is a joint author, including:

(1) whether a contract clarifies authorial rights;

(2) whether a collaborator exercises control over a work;

(3) whether there is mutual intent to be joint authors;

(4) whether audience appeal turns on a contribution; and 

(5) whether a contribution is independently copyrightable.

Judicial Test for Joint Work

A work made for hire vests authorship rights with the employer of the person who created the work. A work made for hire may exist if and only if one of two situations arises: 

(1) an employee prepares the work within the scope of an employment relationship; or 

(2) the hiring party and the creator agree in a written instrument that a specially-ordered or commissioned work is a work made for hire, and the work falls within one of the eight designated categories.

Two Ways to Create

Courts employ the common-law agency test to determine whether an employment relationship exists between a creator and the hiring party. That test examines a multiplicity of factors.

Courts apply the three-factor common law test to determine whether a creator made a work during the scope of employment: 

(1) the work was of the type for which the employee was hired to perform;

(2) the employee’s creation of the program occurred substantially within the authorized time and space limits of his job; and 

(3) the work was actuated by a purpose to serve the employer’s interests.

Scope of Employment
 
 
Sole Authors & Assistants
Joint Authors

Where more than one person has created a work, each person is a joint author in a joint work.  This means that each author holds an equal ownership interest in the whole of the work, regardless of whether each author contributed an equal amount of effort or content to the work.

Work Made for Hire
Employment Relationship

A copyright initially vests with the author of a work. The copyright may then be transferred, either as an assignment (transfer of the entire copyright) or as a license (transfer of something less than the entire copyright). Copyrights may be divided by rights, time, or space.

Assignments & Licenses
Exclusive or Non-Exclusive

Transfers may be exclusive, where the author does not retain the copyright right that he transfers for himself or anyone else.  Alternatively, the transfer may be non-exclusive, where the author retains for himself (or someone else) the same right that he transfers.

To effectuate an exclusive transfer of rights, a copyright owner must sign a writing that manifests her intent to transfer rights.

Writing for Exclusive

Oral or circumstantial evidence is sufficient to effectual a non-exclusive transfer of rights.  An implied transfer is possible.

No Writing for Non-Exclusive
Termination Right

An author may terminate an assignment or license thirty-five years after the transfer date.

 
 
Practice Problems

Question 1

Neil hires Leslie to draw illustrations for his textbook.  Neil explains in detail how he would like the illustrations to appear and Leslie draws them accordingly. She draws them at home, using her own supplies.  Neil pays Leslie $20 cash per drawing.
 

Question: Who owns the copyright to the drawings that Leslie has drawn for Neil?

Question 2

Bart is writing a children’s storybook. He asks Phyllis, who is an artist, whether she would like to help him make the storybook by drawing the illustrations. Phyllis is excited to do it. As she reads the story line that Bar writes, she decides what to draw as illustrations and where to place them in the book. Bart examines the pictures that Phyllis draws and edits the writing to better reflect the imagery of the pictures. Once the storybook is published, Bart and Phyllis are listed as co-authors.
 

Question: Who owns the copyright to the book?

Question 3

Walter is an hourly employee of Big Books, Inc., which is a retail store that sells various genres of books and magazines. Walter works the cash register, shelves books, and answers questions that customers have about books. When he’s not on the clock, Walter writes fiction novels at home.
 

Question: Who owns the copyright to the fiction novels?

Question 4

Katie and Bethany agree in writing that they are joint authors of a television show. Katie writes the screenplay for a television show. Bethany creates and directs dance routines in the show (which routines she had previously recorded). They are both listed as co-authors of the show.
 

Upon the show’s completion, Katie realizes that Bethany has worked only ten hours on providing the dance routines for the show, whereas Katie has spent hundreds of hours on everything else related to the show (writing, directing, casting, film editing, etc…). Katie seeks to bar Bethany from collecting half the profits, arguing that Bethany is entitled to only a fair wage for her ten hours of work.
 

Question: Is Katie likely to prevail?

Question 5

Karen is law professor who has authored a book entitled, Intro to Legal Writing. She emails a draft of the book to her student, Ben. In the email, Karen states: “Ben, Please review for any errors. Thanks.” After Ben completes the review, he prints the book and begins selling copies.


Question: Does Ben hold a license to copy and sell Karen’s book?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Answers

Answer to Question 1

Leslie likely owns the copyright. As an initial matter, Neil does not appear to be the sole author with Leslie acting under his authority. Although Neil describes the illustrations in detail, Leslie likely still exercises judgment in creating the illustrations according to his request. She is not an assistant acting under his authority.
 

Nor do Leslie and Neil appear to be joint authors. The contribution of Neil is not independently copyrightable. Also, there is no indication that Neil and Leslie both consider each other to be a joint author of the illustrations.
 

The issue becomes whether the illustration is a work made for hire. The facts do not indicate that there is any agreement between Neil and Leslie that designates the illustrations to be a work made for hire. If there is, this would be a work made for hire because an instructional textbook is one of the works that may become a work made for hire by contractual agreement. Assuming, however, that there is not such an agreement, the issue is whether Leslie created the illustrations under an employment relationship with Neil. This seems unlikely under several of the agency factors: Leslie uses her own art supplies to create them; she creates them at home; Neil pays her cash (without employee benefits) and per illustration; he does not appear to have a right to assign her additional projects.
 

Note that if Leslie does indeed own the copyright to the illustrations, Neil may still publish them in his textbook. Assuming that Leslie knows that she is drawing these illustrations for Neil’s textbook, Leslie impliedly grants Neil a license to publish them when she agrees to draw them for the book. The license would be non-exclusive in the absence of a formal written agreement stating otherwise.

Answer to Question 2

Bart and Phyllis are likely joint authors. They intend for their contributions to merge into one, and furthermore, they intend that each be a joint author (as evidenced by their listing on the book as “co-authors”). Their contributions are in fact merged together into the storybook. Both exercise control over different aspects of the project (Phyllis decides the content and placement of the illustrations; Bart decides the content of the story line.) Each of their contributions is independently copyrightable (Phyllis’s illustrations are original and fixed in the drawing; likewise, Bart’s story is original and fixed in a writing.)

Answer to Question 3

Walter owns the copyright. He created the novels outside the scope of employment. First, writing books is not the sort of work that he is employed to perform at the book store. Second, Walter created the novels at home (away from the bookstore) and while he was not on the clock (paid hourly). Third, Walter does not create the books to serve the bookstore’s interest.

Answer to Question 4

No. Katie and Bethany are likely joint authors. They agree in writing to be joint authors; they are billed as co-authors; they each contribute independently copyrightable works to the show; they each exercise control. As joint authors, they are each entitled to an equal share of the profits. Regardless of the time that each actually spent, joint authorship dictates an equal ownership interest.

Answer to Question 5

No. Ben does hold a license, but it is limited in scope. Karen’s email implies that Ben has her permission to make one copy of the draft for himself to review. The scope is limited to the purpose of review. When Ben prints additional copies and begins selling them, he exceeds the scope of the license granted through Karen’s email.

Answer to Question 6

No. The license between Gary and Sharon is oral, so it cannot be an exclusive license. Despite the express content of their oral agreement that Sharon be the exclusive distributor of Gary’s music, there must be a writing to create an exclusive license. Sharon holds only a non-exclusive license.

Question 6

Gary is a copyright owner of a recorded song. He orally agrees with Sharon that she will be the only one who is authorized to sell the song to the public. A few months later, however, Gary authorizes Sally to sell his music as well.
 

Question: Does Sharon’s copyright right preclude Sally from selling Gary’s song?