Guest post by John Rees, Attorney, Callister Nebeker & McCullough
Most of us know that the words we read and photographs we see online, in books, and in other media are probably protected by copyright law. But who owns the text, images, graphics and other copyright protected works? Who may enforce the copyrights?
As mentioned in a previous post, the person who creates a work is the owner of the copyright in that work. The author of a book is the owner of the copyright in the book. The photographer of an image is the owner of that image. But there is one significant exception: when a work is created as a work made for hire.
Under the work made for hire doctrine, an employer owns the works of an employee created within the scope of his or her employment. So long as the creator is an employee and not working on a project outside of his or her normal duties and responsibilities, most likely the work created will belong to the employer. If the employee wants to retain ownership of the copyright of the work, prior to the creation of the work, the employee and employer should discuss an assignment of the copyright to the employee, and consideration should be given for the assignment. Another option is for the employee to receive a license to use the work. In this way, the employee is not prohibited from using the work he or she created.
Transfer of ownership in a work itself does not transfer the copyright. For example, purchase of a piece of original art gives the purchaser the right to own and display the artwork, but it does not convey ownership in the underlying copyright. As a result, the purchaser may not make copies of the artwork, post images of the artwork online, create derivative works or distribute copies of the artwork. Similarly, if a copyright in artwork is transferred by assignment, the assignment does not necessarily include ownership of any material objects created under the copyright. The material objects and the copyright rights are distinct and treated separately.
Sometimes authors or other creators of original works collaborate on a project, such as computer software. If the contributions of two or more creators are integrated into the overall work and are inseparable, the authors become joint authors and co-owners of the entire work, regardless of the amount of their individual contributions. One software developer may code 10 percent of the program and another may code 90 percent, but both are equal owners of the entire software program. Joint authors may use the work as if there were no other owners, even if the other owner objects to the use. One of the joint owners may, without the consent of the other owners, grant licenses to third parties to use the work. One co-owner may sue for infringement without bringing the other co-owners into the litigation. However, co-owners must account to each other for any profits earned from use of the copyrighted work.
Joint ownership is distinguished from authors making a contribution to a collective work where each individual work remains distinctive and stands alone. Collective works have two different levels of ownership. Authors may own the individual articles or elements of the collective work, and another author may own the copyright in the collection of works.
Ownership in copyrights and the material objects created under copyrights are complex and need to be carefully analyzed before proceeding to exercise rights under the copyright in a work or in the material object created under the copyright. As with most intellectual property rights, caution is the word!
John Rees is a business lawyer with the law firm of Callister Nebeker & McCullough who helps clients find solutions to their business legal needs, particularly in a complex legal and business environment. He focuses on corporate and intellectual property issues, particularly relating to licensing and doing business on the internet.