By: Jeffrey G. Sheldon, Esq.
The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
- In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as a work prepared by an employee within the scope of his or her employment, or a work specially ordered or commissioned for use as:
- Contribution to a collective work
- Part of a motion picture or other audiovisual work
- Supplementary work
- Instructional text
- Answer material for a test; or
Work by a non-employee is a work made for hire only if both parties expressly agree in a signed written agreement. Thus if a non-employee is used to create a work, it is important to get copyright ownership specified in writing; otherwise the non-employee owns the copyright. For example, if an outside contractor is used for writing software or creating an advertisement, a written agreement is needed to transfer ownership of the copyright.
The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary. Each can license the copyright, but generally has to share with the co-owner the returns from licensing.
Mere ownership of a book, manuscript, painting, or any other copy does not give the possessor any rights in the copyright of the work. The law provides that transfer of ownership of any material object that embodies a protected work does not convey by itself any rights in the copyright.