The general rule is that a work’s creator initially owns the copyright of the work created. But there are exceptions to this rule. Some of the exceptions to this rule are:
- Work created by an employee in the scope of their employment. The work created is owned by the employer.
- If an independent contractor creates work under an agreement that the work is “work for hire,” then the organization that hired him or her owns the copyright, and
- If the original author sells the copyright then the purchasing party becomes the copyright owner.
Owners of copyrighted work have the following rights: reproduction rights, distribution rights, rights to create adaptations, and performance and display rights.
Section 101 of the Copyright Act defines joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”
If two or more people collaborate and contribute to the creation of a copyrighted work, then both authors are co-owners of a single copyright. The U. S. copyright office sees joint authors as having an equal right to register and enforce the copyright. Each owner can commercially exploit the copyright as long as the proceeds are shared equally amongst the joint owners. Of course, there can always be agreements to the contrary among the copyright owners.
There is an emphasis on intent of the parties when determining whether a work is joint work or not. The timing of the intent is important and is analyzed at the time that each author made his or her contribution. There is no requirement that the authors work at the same time or even know each other, but that each party has an intention to author a portion of the work to contribute to the unitary whole of the work.
Nature of Contribution:
A joint author must have contributed expression to the work that is copyrightable. The contribution cannot be just facts or ideas. The quantity and quality of each author’s work can be considered evidence regarding the parties’ intent regarding their contribution to a joint work. One party can contribute less than others and still be considered a joint author, but a contribution of a small amount of work can be considered to show that there was no intent to create joint work.
Decision Making Power:
If there is evidence that one person had the authority to decide if contributions from others would or would not be included in the work can be evidence that there was only an intention to have the decision-making party be the author.
Work for Hire
Under Section 101 of the Copyright Act,
A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a 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 test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, 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, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
17 U.S. Code § 101.
If an employee creates copyrightable work within the scope of his or her employment then the work is considered “work for hire.” But, the Copyright Act does not define the terms “scope of employment” or “employee.”
In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), Community for Creative Non-violence (“CCNV”), a nonprofit unincorporated association dedicated to eliminating homelessness in America and Mitch Snyder, a member and trustee of CCNV, commissioned James Earl Reid to collaborate on a sculpture for Washington DC’s Christmastime Pageant of Peace. The idea for the sculpture was created by members of CCNV, but created by Reid. There was no written agreement. After the sculpture was completed and displayed it was returned to Reid for minor repairs. Reid refused to return it to CCNV and filed certificate of copyright registration in his name. He then announced plans to take the sculpture on a tour. CCNV sued.
The Court relied on agency law to determine the scope of the relationship between CCNV and Reid and looked at the following factors:
- The level of skill required to do the work;
- The source of the instrumentalities and tools used to work;
- The location of the work;
- the duration of the relationship between the parties;
- whether the hiring party has the right to assign additional projects to worker;
- The extent of the worker’s discretion over when and how long to work;
- The method of payment;
- The workers will hiring and paying assistants;
- Whether the work is part of the regular business of the hiring party;
- Whether the hiring party is in business;
- The provision of employee benefits; and
- The tax treatment of the worker.
The Court found in favor of Reid and stated,
[W]e agree with the Court of Appeals that Reid was not an employee of CCNV but an independent contractor. True, CCNV members directed enough of Reid’s work to ensure that he produced a sculpture that met their specifications. 652 F. Supp., at 1456. But the extent of control the hiring party exercises over the details of the product is not dispositive. Indeed, all the other circumstances weigh heavily against finding an employment relationship. Reid is a sculptor, a skilled occupation. Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible. Reid was retained for less than two months, a relatively short period of time. During and after this time, CCNV had no right to assign additional projects to Reid. Apart from the deadline for completing the sculpture, Reid had absolute freedom to decide when and how long to work.
Id. at 752-53.
Work by an independent contractor instead of an employee can be still deemed “work for hire” is to conditions are satisfied. First, the work must be will of one of the nine categories in § 101 (see above). Second, there must be an agreement in writing stating that the work is actually work for hire.