OWNERSHIP OF COPYRIGHTED WORKS

December 2000

Who owns a copyright work? The easy answer is found in the statute itself – the author owns the copyright. But who is the author? Who else has a claim of ownership in a copyright? Ownership may be held by the original author, jointly held by two or more co-authors, claimed by the author’s employer or by a publisher.

The copyright clause of the U.S. Constitution enables Congress to enact legislation that promotes learning by ensuring to authors the exclusive rights to their writings. So, copyright law is grounded in the idea that the author should reap the benefits from exploiting the work she developed. This is a very attractive outcome --rewarding the author who produces the copyrighted work.

Public acceptance of the work dictates how much monetary reward the author will receive. Thus, romance writers may earn considerably more income from their novels than a serious Keats scholar earns from his scholarly writings. Romance novels often are sold in both hardback and then paperback editions; further, they may be marketed as a book on tape. Very lucrative movie contracts are also often available for romance novels that are then converted into television movies of the week, i.e., derivative works. The author earns additional income by transferring the movie rights to the motion picture studio and may receive residuals each time the movie plays on broadcast or cable television. Viewers who see the made-for–television movie may then want to purchase a copy of the novel to read. Contrast this with the serious Keats scholar who may produce either a scholarly journal article or a monograph which likely will have many fewer readers than the romance novel. There are no paperback versions, books on tape or motion picture scripts developed from this work. But whatever monetary or reputational rewards the scholarly writing generates ought to belong to the author.

If there are multiple authors and the copyright is jointly owned, each author owns the entire work. The difficulties caused by joint ownership are especially acute for users who seek permission to use a jointly held copyright work. Although each owner may alienate the work but must share any income that the transfer of the work generates, often joint authors will require a user to obtain permission from each of them.

For both individual and joint authors, ownership of the copyright may be illusory at best. In order to get most scholarly articles published, one is forced to transfer the copyright to the publisher. In fact, often publishers require transfer of the entire copyright when, in reality, all the publisher needs is the right to reproduce and distribute the article by publishing it in a journal issue, and to be able to include it in future publications efforts such as electronic publishing. To be effective, transfers must be in writing.

But what happens when the author is an employee of a company, a university or a federal government agency? Each of these types of authors is treated differently. A “work for hire” under the Copyright Act is defined as one prepared by an employee within the scope of his employment. The copyright in a “work for hire” then belongs to the employer and not to the individual author. This provision governs corporate employees, and often this is directly stated in employment contracts or corporate employment policies.

Federal government employees may not own the copyright in works produced within the scope of their employment, but for different reasons. Under Section 105 of the Copyright Act, works produced by the federal government are not eligible for copyright protection. Thus, a work developed by a federal employee either on the job or within the scope of employment is copyright free. On the other hand, if a federal employee writes a novel in the evening on her own time, these works may be copyrighted and the copyright would be owned by the author.

Articles written by federal government employees within the scope of their employment are also copyright free. It appears that many federal employees are unaware that they do not hold the copyright, and they frequently sign forms purporting to transfer the copyright to a publisher. When the article is published in a journal issue, often at the bottom of the first page of the article there is a statement that the article is copyright free because of the employment status of the federal employee. However, when the publisher places copyright notice on the journal issue, it seldom states that the notice does not apply to the included articles written by federal employees.

Faculty authors, on the other hand, almost always own the copyrights in works they produce. While there is a strong argument that faculty-generated scholarly works are works for hire, by tradition, however, universities have not claimed rights in faculty produced copyrighted works. There are several possible explanations for this tradition. First, except for a few best selling textbooks, novels and software, most faculty-produced works generate no income. In fact, in some disciplines, the author may have to pay page charges in order to get the work published. Second, permitting the author to hold the copyright is often reward for faculty in lieu of higher salaries. Third, these works often are not very marketable and appeal only to a very small group of scholars.

Of course, this may be changing in the digital environment. Especially with the advent of online courses, the institution now has two interests: the right to continue to use the online course even if the faculty member leaves the university and the right to share in any royalties that commercializing the course generates. Usually the key is the amount of resources that the university has invested to develop the course. All over the world the issue of faculty ownership of nontraditional works is being discussed. Many institutions of higher learning are revising their copyright policies to encompass institutional rights to use these works, own the rights or share any income that the work generates.

The digital environment creates some additional concerns about authorship. In the analog world it was easy to determine when a work was finished. Whenever the work is completed, each artist who added paint to the canvas is an author. In other works, there is a point at which it is clear that the work is completed, and then it is relatively easy to determine who were the authors. Digital works complicate this determination since the online mystery novel may continue to be edited, expanded and changed by a variety of authors. At what point is authorship fixed? This is a matter of some concern since determining when the work passes into the public domain is triggered by the death date of the author. Works are protected for life of the author plus 70 years. In the case of multiple authors, it is the life of the last living author that starts the running of the 70 year term. Huge groups of authors who contribute to sequential works such as an on-going mystery novel on the web or a painting to which various artists contribute over time will complicate the determination of the running of the copyright term.

Authorship is a critical issue in copyright now complicated by technology and the digital age. And yet, the constitutional clause itself focuses on authors.