Ownership of Copyright
Section 201: Initial Ownership
Sections 101 and 201: Work for Hire
Section 105: Government Works
Section 106A: Moral Rights
1
Copyright versus Copy
 Copyright is intangible personal property
 Copy is by definition a tangible embodiment of the copyrighted work
 Thus, ownership of the copyright is distinct from ownership of any one
copy or phonorecord
 Example: An artist paints and then sells a work of fine art. The
artist retains the exclusive right to reproduce the work, while the
buyer has a limited right to display the work. The right to sell,
dispose of, or display the work is recognized pursuant to section
109, Limitations on exclusive rights: Effect of transfer of
particular copy
2
Types of Copyright Ownership
 Joint Works - prepared by two or more authors who
intend their contributions to be inseparable
– Examples: motion pictures, musical score
– Consequences: co-ownership (T in C, with right to grant
nonexclusive license w/o consent of others, but must share
profits)
 Collective Works - multiple contributions of separate
and independent works that are assembled together
– Examples: issues of periodicals, anthologies, and encyclopedias
– Consequences: Copyright in the separate pieces for the
respective authors and copyright for the author of the
collective work (caveat?). Each contributor is presumed to 3
retain ownership of his respective piece
Source of Law Initial Owner/Author
 Section 201(a) which states:
– “Copyright . . . vests initially in the author or authors of the
work.”
– While author is not defined, courts look to case law as well as
the negative language of 102(b) to develop a definition of
authorship
– Cases define author as “he to whom a work owes its origin
– Section 102(b) states what works will not be deemed original,
i.e., ideas or principles
4
Authors and Termination Rights
 Section 203 provides authors and, in most cases, their heirs with
the following:
– a right to terminate a transfer or copyright of a license
during the authors lifetime
– a termination right to the owner of the copyright upon the
death of the initial author
– a termination right to a majority of the authors of a joint
work who executed the transfer
 Section 203 also describes the method to terminate the grant of a
transfer or license as well as the effect of termination on
derivative works prepared under the authority of the grant of
license or transfer
5
Source of Law for Work for Hire
 Section 201(b) provides:
– The employer for whom the work was prepared is
the author and owner of the copyright, unless the
parties have expressly agreed in writing to another
arrangement
 Section 101 defines a work made for hire as:
– Class 1: a work prepared by an employee within the
scope of his or her employment
– Class 2: specially commissioned works are works for
hire if two conditions are met
• contractual agreement that work is for hire
• work falls within one of nine statutory categories
6
Employee versus Independent Contractor
 The Supreme Court settled the confusion with its
decision in Community for Creative Non-Violence v.
Reid, 490 U.S. 730 (1989).
 Was Reid an employee or an independent contractor?
 What is the test?
 Test: Case by case, multi-factor agency test
– skill required, source of the tools, location of the
work, relationship of the parties, control over the
work or worker, discretion of the laborer, method
of payment, and tax treatment, etc.
– In essence, a totality of the circumstances test
7
What does it all mean?????
 If the work is made for hire, then the copyright belongs
to the employer
 If the work is not made for hire, then the copyright
belongs to the author or authors (Refer to CCNV v.
Reid for the reason authors is plural)
 Examples of Independent Contractors
– Freelance photographers
– Independent computer programmers and
consultants
– NOTE: IC status does not foreclose the author from
contracting away his copyright
8
Works Made for Hire and
Termination Rights
 Unlike initial authors, employers who become
authors as a result of works made for hire do
not gain the right to terminate grants and
licenses after thirty-five years
 Reasons:
– The employer is deemed a sophisticated author
– The employer maintains a bargaining position equal
to a sophisticated exploiter of works
– the employer, in an arm’s length transaction, can
contract away the right of termination through
9
execution of a written agreement
Government Works
 Section 105 does not allow the United
States Government to avail itself of
copyright protection
 However, the United States Government
may receive and hold copyrights
transferred to it by assignment or
bequest
10
Moral Rights and Section 106A:
The French Were Right!
 Moral Rights encompass the rights of
attribution and integrity
 The moral right is a separate, non-transferable
right that remains with the author, even after
the transfer or license of a copyright
 The moral right protects against alteration,
mutilation, or destruction of the work, even
after transfer or license of a copyright
11