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When performing copyright research, questions may arise as to copyright rules or terminology related to ownership or transfers. For example, you may uncover a registration indicating the work is "made for hire" or you may find a document indicating that the copyright has been "reclaimed" by the author. Before we begin explaining how to conduct copyright research, let's go through some answers to frequently asked questions (FAQ) about ownership and transfers.
For a more detailed discussion of these copyright issues, refer to The Copyright Handbook, by Stephen Fishman (Nolo).
1. What Is a Work Made for Hire?
Usually, the person who creates a work is also the initial owner of the copyright in the work. But this isn't always the case. Under some circumstances, a person who pays another to create a work becomes the initial copyright owner, not the person who actually created it. The resulting works are called "works made for hire" (or sometimes simply "works for hire"). There are two distinct types of work that will be classified as made for hire:
- a work created by an employee within the scope of employment, or
- a commissioned work that falls within a special list of works and that is the subject of a written agreement. The types of works that qualify and the other relevant requirements are explained in more detail in Chapter 15.
If the work qualifies under one of these two methods, the person paying for the work (the hiring party) is the author and copyright owner. If you want to use the work, you should seek permission from the employer or hiring party, not the person who created the work. If in doubt, you may be able to determine work-for-hire status by examining the copyright registration.
2. What Is a Transfer of Title?
The person who owns a copyright is sometimes referred to as having "title" to the copyright. A "title" is often simply the document that establishes ownership to property, like the title to your car or house--but even in the absence of an official document, the owner of property such as a copyright is often said to have title to it.
Just like title to your car or house, title to a copyright can be sold or otherwise transferred. A person or company can have ownership ( "title") of a copyright transferred to it by means of an assignment (essentially a sale in which all or part of a copyright is transferred) or by means of a will or through bankruptcy proceedings. Since title to a copyright can be transferred, you may have to search copyright records to determine the current owner of a work you want to use.
There are two ways that you can learn whether copyright ownership has been transferred: by reviewing the copyright registration certificate issued by the Copyright Office or by locating an assignment or transfer agreement. By reviewing the copyright registration you can find out who is currently claiming copyright and on what basis. For example, if a publisher has been assigned copyright to the work, it will file a copyright registration in its own name and indicate on the registration that copyright was acquired through a legal transfer. Also, many companies file with the Copyright Office the agreement that establishes the assignment, license or transfer. For example, if an artist assigned his work to a company, the company could file the assignment document with the Copyright Office.
3. What Is a Termination of a Transfer?
Sometimes an author transfers copyright to someone and then later the author re-acquires it through a process known as "terminating a transfer. " Copyright laws provide a method by which authors can reclaim rights after a number of years. This termination and reclamation process is complex and the rules differ depending on when the work was first published. As a very general rule, transfer terminations occur between 28 and 56 years of first publication. Terminations are filed with the Copyright Office and can be located by researching Copyright Office records.
EXAMPLE: In June of 1996, the author J.D. Salinger terminated his transfer to the publisher Little, Brown and Company, and reacquired ownership rights to the story, "A Perfect Day for Bananafish." The termination notice was filed with the Copyright Office (and located through Internet research).
Below is the information from the termination notice as displayed in the Copyright Office's online records.
RECORDED: 11Jun96
PARTY 1: Phyllis Westberg, as agent for J. D. Salinger.
PARTY 2: Little, Brown and Company.
NOTE: A perfect day for bananafish & 5 other titles; stories.
From Nine stories. By J. D. Salinger. Notice of termination of grant under 17 USC sec. 304; date & manner of service of the notice: 6Jun96, by certified mail, return receipt requested.
For more information on terminations of transfers, see Chapter 9 of The Copyright Handbook by attorney Stephen Fishman (Nolo).
4. What If More Than One Person Owns a Copyright?
A common question is whom to ask for permission if several people jointly own a copyright. Co-ownership of copyright can occur in various ways. For example,
- two people jointly create a work
- the author transfers portions of the rights to different people (for example, giving half to each child), or
- the author sells a portion of the copyright to someone and keeps the remainder.
Co-owners of copyright have a legal status known as "tenants in common." When a co-owner dies, his or her share goes to beneficiaries or heirs, not to the other co-owner. Each co-owner has an independent right to use or nonexclusively license the work--provided that he or she accounts to the other co-owners for any profits. What this means for our purposes is that if you obtain the permission of any one co-owner you can use the work. However, there are a few exceptions to this rule, as explained in the next section.
You can determine whether there is co-ownership of a certain work by reviewing Copyright Office documents as described below. For example, a registration for a song might indicate that a composer and lyricist are co-owners of a song.
5. Are There Any Situations Where You Must Get Multiple Permissions?
There are several situations where you must obtain permission from all the co-owners of a work, instead of just one. All co-owners must consent to an assignment of the work or to an exclusive license. An assignment is a transfer of copyright ownership. An exclusive license is an agreement granting rights solely to one person.
EXAMPLE: Two programmers create a software program. Company A wants an exclusive license to distribute the program, which means that Company A is the only company that can distribute the program. Since the desired license is an exclusive one, the consent of both programmers must be obtained.
In addition, all co-owners must consent if:
- the co-owners have an agreement amongst themselves prohibiting any individual owner from granting a license; and you are aware of this agreement
- you want to use the text on a worldwide nonexclusive basis--some countries require consent of all co-owners even for nonexclusive uses, or
- you want to use the text for a commercial purpose such as to sell a service or product.
- Although copyright law does not explicitly require that all co-writers of a song consent to the first recording, we recommend joint consent since, after the first recording, anyone can record the song as long as payments are made according to compulsory license rules.
6. Is There a Difference Between an Author and a Copyright Owner?
The author is the first owner of copyright. The author is either the creator of the work or the person that employs someone to create the work (see work-for-hire rules discussed above). Many authors do not retain their copyright ownership; they sell or transfer it to someone else in return for a lump sum payment or periodic payment known as a royalty. In this way, the author and copyright owner (sometimes referred to as "copyright claimant") may be two different people. Even if you do not know the name of the current copyright owner, knowing the name of the author will help you find it in the Copyright Office records.
7. What If a Work Does Not Contain a Copyright Notice?
It's common to start copyright research by examining the copyright notice. However, in some cases, the notice may be missing from the work. One reason you may not find a notice is because notice is not required on works first published after March 1, 1989. In addition, for works published prior to that date, notice is required only on visually perceptible copies--that is, copies that can be seen directly or with the aid of a device such as a film projector. Printed books, paintings, drawings, films, architecture and computer programs are all visually perceptible. However, some copies of works are not visually perceptible, such as a song on a compact disc. Copyright notice would be required if the song lyrics were printed on the album cover.
Another reason that a work may not include notice is that the owner failed to affix it, which may result in the loss of copyright. For works first published before 1978, for example, the absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. The absence of notice on works published between January 1, 1978, and March 1, 1989, may or may not result in the loss of copyright, depending on whether the owner corrected the error within five years of the publication and met other copyright law requirements.
8. What If There Is a Copyright Notice for an Entire Magazine but Not for the Specific Article You Want to Use?
If a story or a photograph is used in a magazine, there may be a copyright notice for the magazine but not for the specific story or photo that you want to use. That's because the owners of magazines, anthologies or greatest hits collections in which many different copyrighted works are collected (referred to as "collective works") can use one copyright notice to protect all the works in the collection. This does not necessarily mean that the magazine owns the copyright in all of the works. It may or may not, depending on the contract with the author or photographer. Copyright Office research may not necessarily help in locating these works because often they are not listed separately by title in Copyright Office records. You may be better off contacting the owner of the collective work directly.
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