Licensing Artwork: Negotiating and Monitoring Royalty Payments
by Attorney Richard Stim
The person who creates a work is not necessarily the copyright owner.
Many artists, writers, and musicians mistakenly believe that the creator of a work automatically owns the copyright. That's not always the case. Exceptions to the rule occur when a work is created by an employee in the course of his or her employment, or if the work is created by an independent contractor and qualifies as a work "made for hire," or if the creator has sold or transferred all rights attached to the copyright.
When Someone Else Owns the Copyright
One exception to the rule that copyrights are owned by the author or creator is if a work is created by an employee in the course of his or her employment, the employer owns the copyright. Another exception is that if the work is created by an independent contractor and qualifies as a work "made for hire," then the hiring person or firm owns the copyright.
The hiring person or firm will own a work made for hire if the independent contractor signs a written agreement stating that the work shall be "made for hire" and the work is one of the following:
- part of a larger literary work, such as an article in a magazine or a poem or story in an anthology
- part of a motion picture or other audiovisual work, such as a screenplay
- a translation
- a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix, or index
- a compilation
- an instructional text
- a test, or answer material for a test, or
- an atlas.
Works that don't fall within one of these eight categories constitute works made for hire only if they were created by an employee within the scope of his or her employment.
Another exception to the general rule that the creator owns the copyright occurs if the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.
Copyright Ownership in Joint Works
When two or more authors prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered joint work and the authors are considered joint copyright owners.
The most common example of a joint work is when a book or article has two or more authors. However, if a book is written primarily by one author, but another author contributes a specific chapter to the book and is given credit for that chapter, then this probably wouldn't be a joint work because the contributions aren't inseparable or interdependent.
If at the time of creation, the authors did not intend their works to be part of an inseparable whole, the fact that their works are later put together does not create a joint work. Rather, the result is considered a collective work. In this case, each author owns a copyright in only the material he or she added to the finished product.
For example, in the 1950s, Vladimir writes a famous novel full of complex literary allusions. In the 1980s, his publisher issues a student edition of the work with detailed annotations written by an English professor. The student edition is a collective work. Vladimir owns the copyright in the novel, but the professor owns the annotations.
The U.S. Copyright Office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyright, provided that the other copyright owners get an equal share of the proceeds.
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Copyright 2006 Nolo
