Determining Who Owns the Copyright
How do I become a copyright owner?
U.S. Copyright law offers generous legal protection for many new works. The creator of an "original work of authorship" that is "fixed in any tangible medium of expression" is immediately and automatically the owner of the Copyright to that work. No additional action or registration is required from the author to receive the protections of copyright.
An "original work"requires a minimal level of creativity receive copyright protection. For example, alphabetical listings in the phone book are not original, but advertising layouts, photographs, software, and many other works are likely "original." To be “fixed” in a "tangible medium of expression" requires that the work be sufficiently permanent or stable to allow it to be perceived, reproduced, or otherwise communicated. Scribbles on paper or documents saved to a disk are "fixed," while a spoken statement, although original, is not fixed in a tangible medium unless it is recorded.
As a result, each one of us creates new protected works when we write journal articles, produce videotapes, create works of art, or write computer software. In fact, under today’s law, copyright also applies to notes that we dash off at meetings, letters home to family, practically every e-mail message and tweet, and photographs that we take on vacation.
Can copyright ownership be transferred?
Yes, copyright ownership can be transferred in part or in whole. When a party owns the copyright to a work, he or she actually owns a "bundle" of rights that may be transferred entirely to another party or only in part. Depending on the agreement between the copyright owner and the other party, the copyright owner may retain certain rights from the "bundle" or transfer them exclusively to the other party. Read more information regarding the division and transfer of copyrights in the Managing Your Copyrights section below.
What is work for hire?
While copyright generally vests with the creator of an original work, this is not necessarily the case if that work is made within the scope of the creator’s employment. In that case, all rights in the work belong to the employer.
American copyright law provides for two possible ways that a work may be deemed "for hire." The first is most common. If the person creating the work is in fact an "employee" (as opposed to an independent contractor) and the person created the work within his or her scope of employment, then the work is "for hire." Many works can fall into this category just by circumstances of employment. As a result, many works created as part of a person’s job performance may belong to the employer.
The second possibility applies to independent contractors, but it applies narrowly to only the types of works listed in the statutory provision, and only if the parties have entered into a signed agreement stating that they agree that the work will be regarded as "for hire." Clearly, this provision applies only by applying careful and diligent steps. A word of advice: Notice that simply paying someone to prepare a work is not enough to place the copyright with the hiring party.
For more information:
- A brief and helpful brochure from the U.S. Copyright Office
- Summary of court rulings about "works made for hire" at colleges and universities
How does "work for hire" apply to universities?
Colleges and universities present complicated questions about application of the "work-for-hire" doctrine. Many universities, in keeping with academic and scholarly custom, have adopted policies that recognize faculty ownership of copyrights in many of their scholarly works and teaching materials. Under other circumstances, however, many universities retain the copyrights to works created by faculty, staff, or students. Works commissioned by the university or created with substantial university resources often fall within this category.
These options generally place the entire copyright with the university or with the author, but the need to share rights to use new works is becoming increasingly important. For example, some policies might vest the author with the copyright, but hold a limited license allowing others at the university to use the work for teaching and other purposes. Also common is the creation of instructional materials for a standardized course or for an online program. Sharing of rights can serve needs well. The instructor might hold rights to use the content in future teaching or publications, while the university retains the rights to sustain and update the educational program.
The movement toward "open access" publishing and the development of institutional repositories is also leading to reconsideration of copyright conventions. The repository at Columbia University is Academic Commons. Many universities now require faculty authors to deposit copies of their publications with the institutional repository for public access. These developments do not change the copyright status of the work, but they do compel a limited sharing of rights to the university for the benefit of all readers and researchers.
These important developments in the management and dissemination of scholarship are reminders that application of simple or “all-or-nothing” rules about copyright are often no longer acceptable. The critical issues is not whether a work qualifies as "for hire," but instead whether rights to use the work are properly shared within the university community. As one university report concluded: "A careful allocation of rights among parties can best allow faculty to build on their previous works, enable colleagues and students to benefit from one another’s research and creativity, and allow universities to foster the greatest growth of knowledge from increasingly scarce support funds."
Securing Your Copyright
What copyright notice should I put on my works?
Under the U.S. Copyright Act, copyright protection is automatically granted to the creator of an "original work of authorship" that is "fixed in any tangible medium of expression." The law does not require any steps or procedures to have copyright protection. In short, the law does not require a notice to be placed on the work for an author to secure copyright protection.
On the other hand, the creator of a work may nevertheless include a copyright notice on a paper or other copyrighted work. It is still good practice for many practical reasons and for some possible legal benefits. A conventional copyright notice includes three elements:
- The word "copyright" or the copyright symbol;
- The year of creation or publication of the work;
- The name of the copyright owner.
The notice typically appears as follows: Copyright 2009, Suzie Smith.
When should I include "All Rights Reserved" in the copyright notice?
You will often see the phrase "All Rights Reserved" added after a formal copyright notice on many works. This statement used to be a requirement for securing rights in some countries. These countries, however, have since signed the Berne Convention, which prohibits any notice or other formality as a condition to copyright protection. Today, the phrase is either a historical artifact or an attempt to scare the uninformed.
How do I register my copyrights?
The U.S. Copyright Act does not require copyright registration for an original work to be granted protection. The creator of a work can still register his or her copyright, if he or she so chooses, as it does provide some important practical and legal benefits, notably the right to collect as "statutory damages" in a successful infringement lawsuit. Refer to the U.S. Copyright Office Copyright Registration page for more information regarding instructions, filing fees, and necessary forms. This process may be completed online or through the mail. Bottom line: If you are serious about ever taking legal action to protect your work, you should register the work with the Copyright Office and register early.
Managing Your Copyrights
How do I grant permission to others?
Copyright "ownership" comprises a set of rights that the owner may grant to others, either in part or whole. The owner is able to specify who may use the copyrighted work, as well as when, where, why, and how the work may be used.
The grant of permission is a license to use the work. A license may be exclusive or nonexclusive. The copyright owner may also make a transfer of the copyright in whole or in part. While a license grants permission to use the work, a transfer shifts ownership of the right.
Requirements for an exclusive license or a transfer of the copyright:
- Must be in writing;
- Must be signed by the party making the grant.
Requirements for nonexclusive licensing of copyright:
- Need not be in writing, but written confirmation of the license is usually a recommended practice.
The assignment of copyright often applies to publishers, who typically require the exclusive right to publish and distribute the copyrighted work. Most other situations do not require the copyright owner to grant exclusive rights to the work. For example, a copyright owner might grant other parties the non-exclusive rights to copy the work for particular uses or use it in a derivative work.
A party seeking permission to use the copyrighted work beyond the bounds of fair use, or other rights allowed under U.S. copyright law, must receive permission from the owner. Thus, he or she must be able to identify and contact the owner to obtain permission. To ease this process, it is suggested that the copyright owner include a statement with the formal copyright notice noting appropriate contact information for further information regarding the work. In order to seek permission, the request may be in the form of a model permission letter. If the owner wishes to grant permission for the uses noted in the letter, he or she may simply sign the letter and return it to the requesting party. The copyright owner is free to amend the model letter before returning it or to limit the permission granted to use the work. Any modifications should be in writing and signed by the copyright owner before returning it to the requesting party.
For those seeking information on how to locate the owner of a copyright in order to request permission to use a work, see the Columbia University Copyright Advisory Office’s guide to Permissions. Included is a model permission letter for use when seeking permission from a copyright owner.
Can I include a statement on the work to grant permission?
While a formal copyright notice is not required, a copyright owner might want to include a creative statement about permissible uses of the work. For example, by including a statement allowing educational uses, the copyright owner can eliminate the need for parties to individually seek permission. The language of such a statement is not prescribed by any law, which leaves it to the copyright owner to determine the scope of rights included in the statement for a particular work.
The following is an example of a permission statement:
Copyright 2009, The Trustees of Columbia University in the City of New York.
For information about this work, please contact _________________ at the address set forth above. Permission is hereby granted to reproduce and distribute copies of this work for nonprofit educational purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act. Before making any distribution of this work, please contact ___________________ to ascertain whether you have the current version.
One of the most straightforward ways to create a permission statement for a work is the use of a Creative Commons license. A copyright owner may choose from six pre-designed licenses, of varying degrees of accommodation to the requesting user. The six licenses are available at: http://creativecommons.org/about/licenses.
Can I include a statement on the work to restrict use?
A copyright owner may also include a statement of restrictions on further copying or other uses of the work. However, copyright owners should be aware that such a statement may or may not be enforceable depending on a variety of complex factors and legal principles. A statement of restrictions may be most appropriate when sending a manuscript to a publisher or editor. In such a case, the copyright owner is advised to state on the cover page that it is for "editorial review only" and that "readers should contact the author before copying or quoting from the manuscript."
Most recent revision: 070209
When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY license from the Copyright Advisory Office of Columbia University, Kenneth D. Crews, director." If your needs for the material are outside the scope of the license, please consider fair use or simply asking us for permission.