A person may obtain a copyright in his or her work under certain circumstances. A person may not copy the entire work of another and obtain a copyright in that work. In order to copyright a work, the portion to be copyrighted must be an original expression. However, there are many ways to create an original expression. These may include the following:
- Author the material
- Put together the works of others into a collective work
- Put together a compilation
- Have employee’s create related expressions of original works
- Create a derivative work
- Purchase the copyright
A person may also obtain a license to a copyrighted work, while not owning the copyright itself. This would permit the person to use, copy, and distribute the copyrighted work, but the person must comply with the terms of the license, which likely includes payment of some type to the owner of the copyright.
A person may also transfer title to a copyrighted work to another, but keep the right to royalties based on the other person’s sales of the copyright work. With this type of arrangement, the creator of the original expression is called the beneficial owner.
A person may sell, or transfer, a portion of the person’s rights in a copyright, or the entirety of his or her rights.
Requirements of Participation
Merely having a part in the creation of an original expression does not give a person a copyright. A person must cause or control the creation of the entire expression. Joint ownership is permitted under certain circumstances, however.
In order to prove ownership, then, a person must prove one of the above types of ownership. A person must prove that he or she did not merely have a part in the creation of the expression, but caused or controlled the creation of the entire expression.
If two or more people contribute to an original expression and seek copyright protection, each contributor must contribute something that may receive copyright protection without the work or expressions of the other contributors. Each contributor must have intended to collaborate to create a work of merged expressions. These expressions become inseparable parts of the whole.
Collective Works and Compilations
Collective works sound similar to compilations but they are different. Collective works are works that contain the works of different creators. The person who puts together the collection may obtain a copyright in the collective work. Compilations combine works that are already existing in a way that makes the entirety an original expression.
Copyrighting an Employee’s Works
An employer might obtain a copyright in his or her employee’s work. If the work was created within the course or scope of the employee’s employment by the employer, the copyright belongs to the employer unless there is a written document, signed by the employer, giving the copyright to the employee. Even if the work is not created by an employee, an employer may still have a copyright in the work of another if the employer specifically commissioned the work of the other for use as: (a) a contribution to a collective work, (b) part of a motion picture or other audiovisual work, (c) a translation, (d) a supplementary work, (e) a compilation, (f) an instructional text, (g) a test or answer material for a test, (h) an atlas.
Copyrighting Derivative Works
A plaintiff may prove ownership of a derivative work by authorship. A derivative work is a work based on an existing work or existing works. In order to have a copyright in derivative work, a person must change, adapt, or transform an existing work to create an original work. A person who obtains a copyright in a derivative work may enforce the exclusive rights to the derivative work, but not to the existing work or works upon which the derivative work is based.
Transferring an Ownership Right
A person may obtain ownership rights in a copyright by transfer. The owner may transfer all or part of his or her exclusive rights to another. One such right might be the right to make copies of the work. The transfer must be in writing and signed by the owner transferring the right or rights or his or her agent. If the owner transferring the right or rights transfers an exclusive license, this means that no one else can have this right. The person receiving the exclusive license becomes the owner of the rights transferred exclusively and can exclude others, including the owner who transferred those rights, from exercising those rights.