© 2011 Autumn Love, Esq.
Filing a copyright application, although very important, is not necessary to establish copyright ownership. Copyright ownership is instantaneous, when a work is created and it is in fixed form its author immediately becomes the copyright owner and is afforded copyright protection. Fixed form is defined as “fixed in any tangible medium,” which is considered broadly to cover all tangible forms of expression, e.g., when a work is written down, when a performance is recorded, etc.
Why is it so important to establish copyright ownership? The Copyright Act of 1976 grants a number of exclusive rights to copyright owners, some of which include reproduction rights, distribution rights, public performance and display rights. This bundle of rights allows copyright owners to license their work for commercial purposes, making a lot of money doing so. Indeed, there are full-time jobs at studios and network television channels devoted to making sure anything displayed on TV has a media license agreement in place with the copyright owner (this includes cars models, clothes designers, food brands and beverages, and even blankets and quilts that are displayed). Also note that a minor may own a copyright, so if singing a licensing contract with a minor copyright owner, the minor should have a parent/guardian authorization in writing.
The one exception to the copyright immediate ownership rule is when a creation is a work made for hire. A work made for hire is a work prepared by an employee within the scope of his/her employment, in which case the employer is considered the author/owner upon fixation, unless the parties have expressly agreed otherwise in writing.
One issue that often comes up in litigation surrounding work made for hire is whether an artist is considered an employee or an independent contractor. In making this determination, courts have looked at factors such as duration of the work relationship, amount of employer’s control, can additional work be assigned, whose tools, whose work space, and who has control over hours worked. If an employer hires an artist for a project and would like to consider the artist’s work a for work made for hire it may not be enough to simply state in the artist’s employment agreement that the artists is to be considered an employee of the employer, the work made for hire factors should be taken into account as well. In addition, only copyright owners are eligible to file a copyright application for their work. When filing a copyright application, it is important to distinguish between a work made for hire and a work made by independent contractors.
When it comes to copyright ownership of works of art that are specially commissioned (i.e., think public monuments, large projects, etc) a work specially commissioned is not considered to be that of the employer who commissioned it, but rather that of the artist, unless the parties have executed a contract specifically stating that the work belongs to the party who commissioned the work. Therefore any work that an artist is commissioned to do, even an employee-artist, remains the ownership/authorship of the artist, unless there is a contract specifically to the contrary. This is because in writing the copyright laws, legislatures most likely understood the unequal bargaining power artists may have and their inclination to give aware their rights quickly, that is why the burden is on the employer to contract into a work made for hire, if the employer does not, then the artist has the right to retain ownership. In this situation only the artist may file a copyright application for the creative work.
When authors collaborate with each other or when many authors contribute separately to a project the work will be considered a joint work if the authors had the knowledge and intention that their work would be merged with the contributions of other authors as inseparable or interdependent parts of a unitary whole. Without a written agreement to the contrary, joint authors will be deemed to own an undivided interest in the entire work and each co-author has an independent right to use or license the entire work. This can get a little tricky if one co-author wants to license the work and another co-author does not agree, it is best to define permitted licensing arrangements before beginning joint works. Furthermore, in this situation, the authors should file a copyright application indicating joint ownership.
One of the most salient debates in the copyright realm is the Fair Use Defense, also known as Fair Use. Fair Use says that if you do infringe and use another’s copyrighted work without permission, your transgression is pardoned if the use is considered somehow newsworthy. The definition of newsworthy is vast, as any kind of social commentary, parody, critique, or public importance falls within the definition. Basically any use that is not seen as purely commercial is accepted under Fair Use. Keep in mind though that the copyrighted work that is “borrowed” must be reasonably necessary to make your point, as in, do not fully copy the whole work of Harry Potter, word for word.