How Is A Copyright Obtained?

• Jurisdiction: Maryland

III. HOW IS A COPYRIGHT OBTAINED?

For works created before January 1, 1978, the effective date of the 1976 overhaul of the Copyright Act,¹² the literal language of the Act indicates that copyright exists at the moment the fundamental requirements are met, namely the fixation of a work of authorship in a tangible medium of expression. The word "subsists," as used in the 1976 revision to the Act, connotes that copyright arises independently, without regard to any formalities such as registration, deposit, or even notice. Copyright protection for earlier works was only effective upon publication, notice, or, in some cases, registration.

So, who owns the copyright? At the moment of creation, copyright vests in the author or authors of the work.¹³ In the easy case, a person who writes a novel, composes a symphony, or choreographs a ballet is the author of those works and owns the copyright in them. When two or more people create a work together, with the intent that their contributions remain indistinguishable or inseparable, the copyright may be owned jointly by all of the authors.

When collective works are created that comprise elements authored by different people, the creator of the collective work owns a copyright in the work as a whole, including the selection and organization of its constituent elements. Whether the authors of the constituent elements retain their copyrights in their original contributions is generally resolved by contract.¹⁴ For example, the copyright may be assigned to the owner of the collective work; at the other extreme, the author may merely grant a nonexclusive license to the owner of the collective work for inclusion, reproduction, and distribution. Or various rights may be transferred under exclusive licensing agreements.

When the creator of a work of authorship is an employee, and the creation of that work is within the scope of her employment, her employer will be deemed the "author" of the work, and, hence, the copyright owner, under the "works made for hire" doctrine. Problems often arise when the work is commissioned by a company and created, not by a regular employee, but by an independent contractor. In such cases, the doctrine applies when the contractor would be deemed an employee under the law of agency, that is, when the employer has the "right to control the manner and means" through which the work is created.¹⁵ Significantly, neither an agreement between the parties, nor industry or popular usage, will control the...