The short answer is that the person, or persons, who created the work—the author(s) of the work—own the copyright to the work. The longer answer is that a copyright might be owned by someone other than the person who created the work when it was created by an employee, or by someone commissioned to create the work under a work-for-hire agreement.
If a single author writes a novel, composes a song, paints an image, creates a photograph, or records music, et cetera, that single person is the sole owner of the copyright for that work once it is fixed in a tangible form. (For information on “fixation in a tangible form,” see my discussion under the topic “What is a Copyright?”) However, if more than one person contributes an independently copyrightable portion to the work (i.e., writes the novel, composes the song, or records the music) “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” each person is a co-owner of the copyright. This is called joint ownership.
Each joint owner of a copyright has all the rights of the copyright even if one person’s contribution to the work was minor. Each person owns the entire bundle of rights that exist in the copyright. (For more information on the “bundle of rights” contained in a copyright, see my discussion under the topic “Bundle of Rights.”)
Joint ownership may become an issue if you want to publish or license a work as its author and someone believes s/he has ownership or joint ownership of the copyright in the work. That person may challenge your sole authorship of the work (be it a novel, a song, a recording, a design logo, video, movie clip, et cetera), demand an accounting of profits as a co-owner, or someone who wants to license your work may have difficulty knowing with whom to negotiate.
One way to address the issue of joint ownership prior to the creation of a work is to enter into a work-for-hire agreement with someone who will be contributing to the work. A work-for-hire agreement is a written contract between an employer and an independent contractor (or a contracted team) commissioned to complete a project in exchange for money. The terms of the work-for-hire agreement must expressly state that: the parties intend a work-for-hire relationship; and the employer owns the copyright, and not the independent contractor who is creating the work. The writing should also be signed by both parties. A work-for-hire agreement might be created for the following, nine kinds of works:
- a contribution to a collective work;
- a part of a motion picture or other audiovisual work;
- a translation;
- a supplementary work (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);
- a compilation (i.e., illustrations that will accompany another author’s book);
- an instructional text (a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities);
- a test;
- answer material for a test; or
- an atlas.
17 U.S.C. § 101. If no work-for-hire agreement is entered into with the independent contractor(s) who contributed to the work, the ownership of the copyright in the work belongs to all those who created the work. The only way to remedy this situation after the work has been created is to arrange for another written contract/agreement where the joint owner(s) transfer or assign their copyright ownership in the work to you.
In addition, if an employee creates a work within the scope of his employment, the authorship and ownership of the copyright to that work belongs to the employer. However, if later, the ownership of the work is challenged, there are legal tests (under the law of agency) that an employer might have to prove to substantiate that the work was made for hire by an employee. One exception to this general rule is that the copyright in academic writings belongs to the professor even if that person is employed by a university.
If you have questions about the ownership of a copyright, joint ownership of a copyright, an employer’s ownership of a copyright, work-for-hire agreements, or assignment agreements please do not hesitate to contact me at RichardsonClement PC:
- web address: www.Richardson.law;
- email address: david@richardson.law;
- direct dial number: (205) 729-6053.