31. Who can claim copyright protection?
Only the creator of the work (or individual contracting for the creation of the work) may secure copyright protection. The copyright may later be licensed or assigned, but the original creator must originally secure those rights. Companies can be authors under copyright law. The following rules apply to creation of the work:
- Co-Creators of a Work – When more than one creator takes part in the creation of the work, there is a presumption that each party owns the work (and attached copyright) equally. Of course, the parties can enter into a contract establishing ownership rights in the creation.
- Jointly Owned Copyrights – Co-creation or co-ownership of a copyright entitles each owner to full use and enjoyment of the copyrighted work. Absent a contract stating otherwise, however, any income derived from the copyright is split equally among copyright owners.
- Employees and Work for Hire – An individual or firm may own a copyright created by a third party if the third party is an employee or independent contractor hired for the purpose of creating such a work. Work made for an employer by an employee generally belongs to the employer if it was created within the scope of employment. Likewise, works created by an independent contractor generally belong to the contracting party if the work is in the scope of the contracted work.
- Work Agreements and Default Rules – The employment agreement or work-for-hire agreement (independent contractor agreement) will generally specifically address the issue of intellectual property created by the worker. Absent an agreement, default rules regarding the status of an individual as employee or independent contractor may vest ownership of any creation in the employer or contracting party. The work created must be within the scope of the copyrighted material. Examples of creation within the scope of a contracted relationship include:
- a new creation that is the subject of the work relationship;
- any addition to or modification of an existing work product (except for entries to magazines, blogs, encyclopedias, or other collaborative works with open entry);
- any material constituting a part of a larger contracted work;
- translations of an existing work;
- compilations of multiple parts of a work product; and
- designs or planning material giving rise to the work product.
- Transfer and Licensing – The owner of a copyright may transfer the copyright or license its use to any third-party individual or firm. These are common methods of monetizing copyrights beyond personal production and distribution of the copyrighted work. Copyrights exist independently of the original work itself in tangible form. Owning an original of the copyrighted work does not equate to ownership of the copyright.
- Discussion: How do you feel about who is considered to be the owner of a copyright? Can you think of any situations where the above-listed rules could result in unfair outcomes?
- Practice Question: Harriet is an employee of ABC Corp. She primarily works on the graphic design team where she creates logos and other creative pieces for the company. During her lunch breaks she has been working on a new design concept for a cartoon corporate mascot. She is thinking of attempting to sell or license this creation to some corporations. Does Harriet own her creative work? What other information do you need to make this determination?