Ownership of Copyright

AuthorRobert A. Gorman
ProfessionUniversity of Virginia School of Law
Pages47

The provisions of the Copyright Act that deal with the ownership of copyright are for the most part straightforward. They declare that the author of a work is the initial copyright owner; that joint authors are coowners of copyright; that the employer in the case of a work made for hire is considered the author and is presumed to be the copyright owner; that ownership of a contribution to a collective work is different from the ownership of the collective work itself; that copyright may be transferred in whole or in part; and that copyright ownership is distinct from ownership of the physical object in which the copyrighted work is embodied (a distinction already discussed in the first chapter).[85].

What remains is to explicate these principles and also to consider the somewhat unusual provision of the Copyright Act that.gives to an author who has transferred the copyright the power to terminate that transfer and recapture the copyright.

Initial Ownership of Copyright

Under section 201(a) of the Copyright Act, copyright ownership of a work vests initially in the author. The statute deals not only with works authored by an individual but also with works that are jointly authored and works that are prepared at the direction of others such as employers and commissioning parties.

Joint works

If the work is a "joint work," the authors are co-owners of the copyright.

The term "joint work" is defined in section 101 to mean "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

If a popular song is created collaboratively by composer and lyricist, they are both regarded as co-owners of the copyright. If, however, the tune is written initially as a purely instrumental work without lyrics, is marketed that way, and the lyrics are added at a later date by a lyricist at the composer's invitation, the work is not a "joint work" within the statutory definition. This is a more restrictive definition than the courts had developed under the 1909 Act.[86].

A work may be treated as a joint work under the Copyright Act even though the contributions of the collaborating authors are by no means equal, whether measured by quantity, quality, or commercial value.

Even though, for example, the musical public may be enthralled by a song's catchy melody and may have only the faintest recollection of the accompanying lyrics, both composer and lyricist will be treated as joint authors provided the statutory definition is satisfied. It is commonly recognized, however, that to be a joint author one's contribution must be rire than de minimis and must fall within the scope of copyrightable subject matter. It has therefore been held that a homebuyer who makes suggestions or provides fragmentary sketches to an architect cannot claim joint authorship of the final and detailed architectural plans;[87] that an...

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