Today, we’re going to be talking about copyright ownership, and this is a more complicated area of law than you might think. Sometimes, it’s less than clear who is the owner of the copyright protected work. In order to sue for copyright infringement, one of the elements that you have to show under copyright law is that, in fact, you have the legal right, the exclusive legal right to, for instance, bring litigation for copyright infringement or to assert some other right bundled up with the copyright itself. So, you need to be able to show that you’re the author of the work or that you have been provided the exclusive right in the work that is at issue, that has been infringed by the defendant, for instance.
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Welcome to Copyright Law Radio. My name is Copyright Law Attorney, Enrico Schaefer. Today, we’re going to be talking about copyright ownership, and this is a more complicated area of law than you might think. Sometimes, it’s less than clear who is the owner of the copyright protected work. In order to sue for copyright infringement, one of the elements that you have to show under copyright law is that, in fact, you have the legal right, the exclusive legal right to, for instance, bring litigation for copyright infringement or to assert some other right bundled up with the copyright itself. So, you need to be able to show that you’re the author of the work or that you have been provided the exclusive right in the work that is at issue, that has been infringed by the defendant, for instance.
Now, if you’re the author of the work, then that is relatively straightforward. You will have the burden in any sort of copyright litigation of proving that you’re the legal owner of the copyright in the work, and ownership through authorship is often the most common way that you will show that. In order to show that you are the owner of a copyright because you are the author of the copyright, you’re going to have to prove a couple of things in court, if you should end up in litigation.
First, you’ll need to show that you were the originator or mastermind of the work. If you simply provided the idea or directions to another person, then you may not be the author, the copyright law may not protect you as the author. You must prove that you controlled the creation of the entire work if you’re going to be the sole author. You’re also are going to have to prove that you caused the work to come into being into that fixed, tangible medium of expression that embodies the copyright. If you have any doubt about whether or not you’re the author of the copyright, what you can do is have a copyright law attorney take a look at the situation that gave birth to your copyright, and give you a legal opinion as to whether or not you’re going to have any problems establishing that you’re the author and thus the owner of the copyright.
Again, I think people tend to think of the ownership issue very loosely, and it is not a loose concept, it’s a very exacting concept and it’s the very first thing in a court of law, if you should be bound up in litigation, that you are going to have to prove. You don’t want to get to court on a copyright litigation case and find out that there’s a problem with the issue of copyright. If you prove these elements, then and only then, will you be found to have been the author of the copyright protected work.
Now, in some instances, you might have more than one person working on the creation of the copyright protected work in a tangible medium. What you have to do in that case, is if there are two or more authors of a work, you’re going to need to show that each of the authors must have expressed an intent that their contributions, that each of their contributions to the work were to be merged into one inseparable work, so that you went about creating the copyright together for the purposes of merging that work into a single copyright protected medium. You also have to prove that each of the authors’ contributions to the work were independently copyrightable.
For instance, each author of the copyright protected work is going to have to have contributed more than simply directions or ideas. Each contribution to the work must be independently copyright protectable along with the others so that you’re creating this mutual copyright protected work. That could be two or more people that create a copyright protected work. These tend to be much more complicated issues and are incredible common. Sometimes, the person who thinks that they are the artist or the author of the work forgets about the contributions that others may have made. Those others may come in and claim that they, in fact, are the copyright owner or co-owner of the work. So, you need to analyze the copyright ownership issues right out of the gate.
If you’re part of a collective work, you’re going to have to prove, again, something a little different. Ownership in a collective work is a work in which a number of contributions, each of which could be independently copyrightable, are assembled into a collective whole. And it’s the same types of elements that need to be proven where you have two or more owners. There has to be an intent by everyone to create the collective work as a single copyright. These are very important concepts. Copyright protection is not simple, and it’s best if you go after you’re copyright early and work with an attorney who understands copyright law and sets you up to be able to protect your work if there is infringement down the line.
Now, you could also have copyright ownership through authorship in a compilation, and in this instance, you’re going to have to show that the compilation is a work form by the collection and the assembling of preexisting materials, or often in cases that may be data, and you have to select and coordinate and arrange this information or data in such a way that the resulting work, as a whole, constitutes an original work of authorship. The owner of a compilation can enforce their exclusive rights in the copyright compilation just like any other copyright owner. Keep in mind, facts and ideas cannot be copyrighted, but an original compilation of facts and ideas may be copyrightable. Check with your copyright law attorney if you are looking to put together a compilation.
Now, the last thing I want to talk about is work made for hire. Copyright ownership through authorship in a work made for hire is perhaps the most common problem that we see out there as a practical matter because so often the author is working for a company or is working for someone else or has been hired by someone else to create the copyrightable work. Who owns that copyright? Who has the exclusive right to enforce that copyright? The person who put pen to paper, or the person who paid the person who put pen to paper?
Let’s talk a little about what you’re going to need to prove in order to show authorship in a work made for hire. If the person is your employee and prepared the work within the course and scope of their employment, then the jury could find the work to be a work made for hire, unless there’s a written document signed by the plaintiff that specifically gives the copyright to the employee. The default position is the employee who’s working for an employer is working for the benefit of the employer, and the copyright is, in fact, owned by the employer. If you are an employee and you want the work to belong to you, you have to have a written agreement signed by the employer in order to exclude it.
If you find that the author of the work created the work but was not the employee, so an independent contractor, you may still find the work to be work made for hire if you’re able to prove a couple of things. The first thing is that you must prove that there’s a written document that confirms the work has been specially commissioned. And second, you must prove that the work is of a particular type, that it is a contribution to a collective work that is commissioned as part of a motion picture or other audio/visual work. That the work is commissioned as a translation or a supplemental work or a compilation, instructional test, text, a test, work commissioned as an answer material for a test, or as an atlas. And so, the plaintiff is going to have to prove that it fits within one of these types and that it was specially commissioned.
Now, work made for hire is specifically defined by the Copyright Act under 17 USC Section 201(b), and it declares that the employer or other person for who the work is prepared is considered to be the author, whether or not the relationship falls within the meaning of employment, is determined by common law. For instance, the Second Circuit has indicated the following factors to be important in determining whether or not the person is considered to be an employee; whether or not the hiring party, the employer or the supposed employer controls the manner and means of the creation; the skill required to create the protected material; whether or not there’s any employee benefits being provided to the person; how is the employee treated by way of tax treatment, are you withholding; does the hiring party have a right to assign additional projects to the hired party. These are the types of facts that will be important.
Let’s take a look at this, and let’s take a big step backwards. If you are in the business of creating potentially copyright protected materials, if you are a company that is generating documentation or generating original work, you need to make sure that everyone understands who is going to own that copyright. The person who owns that copyright is going to be the person who can enforce the copyright against infringement. Unlike trademark law and unlike patent law, to some degree, the issue of ownership in copyright is often more complicated than not. Work with a good copyright law attorney to make sure that you understand the process and get it documented and that everyone’s expectations are being set on the front end.
My name is Copyright Law Attorney, Enrico Schaefer. We’ll see you next time.
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