Many authors will view the title of this post with a skeptical eye.
How could I not own my copyrighted works? I wrote them, I own them. Question answered.
Or is it?
Copyright law recognizes several types of copyrighted works which are not owned by the creator, or which are owned by the creator in partnership with another person or entity.
Let’s take a closer look at the legalities of copyright ownership:
1. The general rule: creative works are owned by their creator.
As a general rule, ownership of copyrighted works, along with all the related rights, belongs to the author or creator.
However, an author may license, sell, or assign part or all of the copyright — and related rights– to another person or entity, at which point that person becomes the owner. Most authors are familiar with publishing contracts, which contain a license of certain rights (including, but not limited to, publishing and distribution of the work) to a publishing house.
2. Works for Hire belong to the person (or entity) who commissioned or paid for the work.
Where a person (or entity) hires an author to write a “work for hire,” the copyright to the finished work does not belong to the author. Copyright to works for hire, along with all the related and subsidiary rights, belongs to the person or entity who commissioned the work for hire.
Courts use a two-pronged test to see whether copyrighted works (or other creative works) are works for hire. If either prong is met, the work is a work for hire belonging exclusively to the person or company that commissioned or arranged for the work:
First: Was the work prepared or created by an employee in the scope of his or her employment?
Second: Was the work specially ordered or commissioned for use as (1) a contribution to a collective work, (2) part of a motion picture or other audio-visual work, (3) a translation of a pre-existing work or other material, (4) a supplementary or derivative work, (5) a compilation, (6) an instructional text, (7) a test, answer material for a test, or an atlas? And if so, did the parties expressly agree in a signed, written instrument that the work will be considered a work for hire?
Note that the second prong (which applies to freelancers and other independent contractors) requires a signed instrument or contract which states that the work is a work for hire. Without a writing, the copyright doesn’t transfer and the creator continues to have a claim for copyright in and to the work.
Copyright in works for hire belongs to the employer or person(s) who commissioned the work, not the author or creator. For this reason, it’s important for freelance authors and other creative contractors to always, always obtain a contract before starting work on a commissioned or freelance project. The contract must be signed and must indicate who owns the copyright on the finished work.
Without it, you’re risking loss of your copyrights.
Note also that even if no contract exists, the entity who commissioned the work might try to claim the work is a work for hire, which means an expensive copyright lawsuit to determine ownership of the finished work. Lawsuits often cost tens of thousands of dollars in attorney fees (even if you win) – getting a clear contract up front is always faster and cheaper than litigation.
3. Joint Works belong to all authors or creators in equal, undivided shares (unless a contract says differently).
“Joint works” are copyrighted works belonging to more than one co-author or co-creator. As a general rule, joint works belong to all co-authors in equal, undivided shares, meaning that each has a percentage ownership of the whole. This rule holds as long as each co-author’s contribution to the work, viewed on its own, contains copyrightable content.
Smart co-authors enter into a contract before the work is written stating their relative ownership percentages and what responsibilities each author will undertake with regard to creation, marketing and sales of the finished whole. Make sure to include all the relevant details and arrangements. Consult a copyright attorney to help you draft the document – and remember: friendship isn’t a valid excuse for not creating a contract. Memories fade with time, and they fade even faster when tensions and dissensions arise. Put the agreement in writing while everyone is getting along.
Do you have a contract with your co-authors? Will you remember to get one when the time comes?
If you have questions about this or other copyright issues, I’d love to hear from you in the comments!