| Who Owns Copyright?
In any business relationship where creative expression will result, the parties should decide who will own the resulting copyright. For those seeking permission to use the work of others, it is important to understand the basic principles surrounding copyright ownership.
Who owns the copyright, employees or employers, independent contractors or those who pay them?
The general rule is that the author of the work owns the copyright. The author is the one who actually creates the work involved. This presumption is altered only when there is a written agreement signed by the author that assigns the copyright. In the case of work created by an employee in the course of employment, the presumption is generally that the employer, not the author, owns the resulting copyright. Again, this presumption can be altered by a written agreement.
Who is an independent contractor?
An independent contractor is a person who contracts to do work according to the contractor's own methods and is subject to the engaging party's control only as to the final result of the work.
Is the individual an employee?
The key factor in determining whether the individual creator of a copyrighted work is an "employee" is the extent to which the employer has the right to direct or control the performance of the individual's work. Other factors include where the work is performed, whether the employer's equipment is used, whether the individual maintains regular hours and the treatment of the individual's compensation for tax purposes.
Was the work created "within the scope of his or her employment"?
Key factors in determining if the work was created within the scope of employment include:
- the degree to which the work is related to the employer's business;
- the extent that the employer's facilities and equipment are used to create the work; and
- the extent that the work is created on the employer's time.
See Copyright Office Circular 9 for more information on the work for hire and commissioned works doctrine.
Can Copyright be jointly owned?
When a work is prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole, then each of the authors jointly co-own the copyright in the work. That means each co-owner of a joint work has the authority to grant non-exclusive licenses to use the copyright of the work without the consent of the other co-owners. Any profits gained by a co-owner through such licenses must be shared equally with the other co-owners. The assignment of the entire copyright requires the consent of all the co-owners. Those entering into activities with others who may be considered joint owners should consider signing a written agreement defining the rights and obligations of each contributing author. Contact us at info@iph2.com for assistance. |
