• How to obtain a copyright: Authorship and Registration

    Obtaining a Copyright

    Under the Copyright Act, a copyright is granted to the author of a copyrightable work as soon as it is fixed in a tangible medium. Copyrightable works are original works of authorship fixed in a tangible medium of expression. The author of a work is the person or persons who created the work. An author under copyright law refers to more than persons who write literary works; it also applies to any creator of any original expression such as a painting, photograph or sculpture. The author in whom the copyright vests can be a sole author (one individual), joint authors (two or more individuals) or an employer or business entity as a work for hire. While registration is no longer required to obtain a copyright, it carries several important benefits, and so it is recommended.

    Authorship of a Copyright

    Sole authorship is when a single person is responsible for the conception and execution of an original work. This is can easily be shown in some instances, like a painter or writer working in solitude without others. Where authorship is in dispute, and with all other things being equal, an author must show such a high degree of control over the creation of the work that the final product duplicates their conception and vision of the final result. Evidence of this is highly sensitive to the particular situation at issue. Mere submission of ideas, creative contributions or uncopyrightable contributions are insufficient to claim sole authorship. Such circumstances may arise where the author has engaged the help of others in the execution of the work, like a sculptor hiring studio assistants or a director hiring a cameraman and lighting technicians.

    Joint authorship is where two or more authors make a joint work. A joint work is made of independently copyrightable work contributed and merged into inseparable or interdependent parts of a unitary whole. Joint authors must each intend that their copyrightable contributions be merged into such a unitary whole- they must intend to create a joint work. As with sole authorships, the submission of ideas or other unprotected expressions is insufficient to claim joint authorship. Absent an express agreement, intent to have joint authorship can be shown by evidence of joint decisionmaking authority, billing as joint or co-authors, or contracts tending to show both parties as joint authors.

    A business entity can be an author by creating works for hire. There are two types of works for hire:

    1) Works created by conventional employees within the scope of their employment, and
    2) Independent Contractors.

    Conventional employees are persons who are employed in the traditional sense, like being on the employer’s payroll and the employer paying a share of the employee’s payroll taxes, the employer having the right to assign different or more work to the hired party, and the provision of employee benefits. When a conventional employee makes an original work within the scope of their employment, the copyright belongs to the employer.

    Independent contractors are persons hired to make a work that is commissioned or specially ordered. In order for the hiring entity to claim the copyright on a work made by an independent contractor, the work must meet two criteria.

    First, the work must be a contribution to:
    1) a collective work;
    2) a motion picture or audiovisual work;
    3) a translation;
    4) a supplementary work (secondary commentary, illustrations, music arrangements, etc…);
    5) a compilation;
    6) an instructional text;
    7) a test;
    8) answer material for a test;
    9) an atlas.

    Second, there must be written contract.

    These two requirements are very strict. The work must be a contribution to one of the 9 categories and there must be a written contract. If either requirement is not met, then the copyright vests in the independent contractor who created the work. The tangible expression (i.e. the physical copy of the intellectual property, such as a drawing or sculpture) likely belongs to the hiring party, but the copyright will belong to the hired party.

    It is typical that copyright disputes over works for hire are based on whether a hired party is actually an independent contractor or conventional employee. The court will evaluate the circumstances of the employment, focusing on whether the employer treated the independent contractor as a conventional employee. There are no dispositive factors, but the most important ones are the tax treatment of the putative employee (if the employer paid a share of the employee’s payroll taxes), if the employer had the right to assign different or more work to the hired party, and the provision of employee benefits.

    Registration of a Copyright

    While registration is no longer a requirement for copyright protection, it carries several benefits that make the minimal fee well worth the price to register a copyright. First, registration is required to bring a suit for copyright infringement. Second, if a work is registered prior to publication or within 5 years of publication, it is prima facie evidence of a valid copyright. Third, if the work is registered within 3 months of first publication and less than 1 month after the discovery of an infringement, the author is eligible for statutory damages and attorney fees. This last benefit is of tremendous value. Without this benefit, an author will be limited to their actual damages for an infringement (e.g. for lost profits, which can often be found to be minimal) and the author is required to pay for their own attorney even if they win. With the benefit, an author can bring a suit for infringement at very little personal cost, may recover more in statutory damages for each infringement, and will not be responsible for paying their attorney if they win.
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