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All about Ownership of Copyright in the US

March 3, 2024

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This article has been written by Prithviraj Dutta. This article attempts to understand the copyright law of the United States. For this firstly, the US Copyright Act of 1976 has been understood in relation to concepts like copyright ownership, divisibility of copyright as well as authorship. After this, the article has gone into the explanations of collective works and works made for hire as well as the duration of copyright protection and enforcement of copyright. The last part of this article discusses some important cases pertaining to ownership of copyright and related topics.

Table of Contents

Introduction

Copyright law in the United States is a complex and ever-evolving legal field. It is important for anyone working in the creative industries to understand what copyright is, who owns it, and how it can be enforced. In the US, copyright is defined as a form of legal protection given to authors for their creations such as books, music, videos, artwork, and software. Copyright law gives authors the rights to their work including the rights to reproduce, distribute, as well as display, and create derivative works. In order to be eligible for copyright protection, the work must be “fixed in a tangible medium of expression”, meaning it must be recorded in some way that can be reproduced.

Anyone who wants to use or reproduce the work must first get permission from the copyright owner. Copyright owners can also license their work, allowing others to use it for a fee or other consideration. Any person who deals with problems relating to copyright and licensing in the United States needs to have a basic understanding of the copyright law of the country. The rights that are covered under a copyright, the owner of the copyright in a work, and the duration of copyright protection are also essential elements that have to be properly understood. This blog post will provide an overview of the basics of copyright law in the US, including ownership of copyright versus ownership of the material object, divisibility of copyright, authorship of copyright, joint works or multiple authorship, collective works, works made for hire, and the duration of copyright protection.

Copyright in the US

A copyright is defined as a type of intellectual property protecting original works of authorship. Copyright protection begins as soon as the author fixes his creative work in a form of expression that is tangible. Numerous works have been given copyright protection ranging from music, photographs, poems, books, etc.

The US Copyright Act of 1976 governs copyright law in the United States of America. This Act is important in preventing the unauthorized copying of a work of authorship. A person can register copyrights in the Copyright Office present in the Library of Congress. However, works that have been newly created do not have to be registered. The Copyright Office provides additional benefits to all those people who choose to register with the Copyright Office. Therefore, copyright registration and the use of a copyright notice are always better.

Ownership of Copyright

Section 201 of the U.S. Copyright Act of 1976 talks about ownership of Copyright –

Initial Ownership – Copyright in case of a work protected under this Article is initially for the author or authors of the work. The authors who work together on a joint work are known to be the co-owners of the copyright.
Works made for Hire – In the scenario of the work made for hire, the employer or the other person for whom the work is prepared is considered to own the copyright. Unless a situation arises where the parties have expressly agreed in a written instrument that has been signed by them, the owner or other person owns all the copyrights concerned that are comprised in the copyright.
Contributions to Collective Works – Copyright related to each separate contribution to a collective work is distinct from copyright in the collective work as a whole and is initially vested in the author of the contribution. Unless there is an absence of an express transfer of copyrights or the work comprised under it, the owner of the copyright in the collective work is considered to have assumed ownership of only reproducing and distributing the contribution as a part of that particular collective work, or any revision of that particular collective work, and any later collective work of the same series.
Transfer of Ownership –

The ownership related to a copyright may be transferred wholly or in part. This can be done through any means of conveyance or by operation of law. It may be acquired through a will. It can also be inherited by heirs as personal property under the applicable laws of intestate succession.
Exclusive rights that are comprised in copyright that also include all the sub-divisions under Section 106 of the U.S. Copyright Act may be transferred as provided under Clause (1) separately. The owner of any particular right has been entitled to the extent that the right has been given to all the protections and remedies that have been provided to the copyright owner by this title.
Involuntary Transfer – When an individual author’s ownership of a copyright or any of the exclusive rights that are comprised under the copyright has not previously been transferred voluntarily by that individual author, in such a scenario, no action by any governmental body or other official organization, seeking to seize, expropriate, transfer or exercise rights of ownership with respect to the copyright or any of the exclusive rights under the copyright would be given effect under this title except as provided under Title 11.

Ownership of Copyright Versus Ownership of the Material Object

This has been covered by Section 202 of the U.S. Copyright Act, 1976. This Section states that the ownership of a copyright and the ownership of the object over which a person has a copyright are two different and separate things. The transfer of one right does not necessarily mean the transfer of the other right. A simple example of this would be that an author does not transfer his ownership when he sells a copy of his book to a person. A fundamental principle of copyright ownership is conveyed through this section. The transfer of ownership of a material object would not by default result in the person getting ownership of the copyright, and vice-versa. A specific written conveyance of rights is required for the ownership of copyrights to be transferred along with the transfer of the material object. This would be applicable even when the object transferred is a copy of the original manuscript, the negative of a photograph, or an object where the work was first fixed like the master tape recording of a unique statue.

In the case of Pushman v. New York Graphic Society, (1942), the New York Court of Appeals in its judgment held that while the copyright in a work of authorship is different from the tangible embodiment of that work, if the tangible embodiment of the work is transferred then the copyright of the work is also considered to be transferred. Artists were normally considered to have transfer property rights on selling their manuscripts unless the rights had been specifically reserved. However, this presumption was reversed because a specific conveyance of rights was an essential requirement for the sale of any material object to be carried with a transfer of copyright.

Termination of Transfer and Licenses as provided by the Author

Section 203 of the U.S. Copyrights Act 1976 talks about the termination of transfers and licenses that have been given by the Author.

Conditions that have to be fulfiled for Termination – When a work consists of material that had been made for hire, the exclusive and non-exclusive grant of transfer or licence of the copyright or of any right under the copyright that has been executed by the author after January 1, 1978, is subject to termination under the following conditions. This termination can also be through a will –

In situations where the grant has been implemented by one author, termination of the grant may be effected by that author. In a scenario where the grant has been exercised by two or more authors of a joint work, termination of a grant can be effected by a majority of the authors who execute it in cases where the authors are dead, the termination interest of any such author may be exercised as a unit by the person or people who, under clause (2) of the sub-section, have ownership as well as are entitled to exercise a total of more than one-half of that author’s interest.
There might be cases where the author is dead. Then the termination in such scenarios may be exercised as follows –

The widow of the owner or the widower in these scenarios becomes the owner of the author’s entire termination interest. This is unless there are surviving children or grandchildren of the author. The widower owns one-half of the author’s interest when there are surviving children or grandchildren of the author.
Surviving children of the author and the living children of any dead child of the author own the entirety of the termination interest of the author unless there is a widow or widower. In such a case, as previously stated above, ownership is divided one-half each.
The rights related to the author’s children and the author’s grandchildren would have to be divided among them and exercised on a stirpes basis, which is in accordance with the number of children represented. The share in a termination interest will have to be exercised by a majority of them.
There might be situations where the author’s widow or widower, children or grandchildren have passed away. In such situations, the executor, administrator, or personal representative trustee gets the entire termination interest.

The termination could be made during a time period of five years that would start at the end of thirty-five years from the date on which the grant is executed. The grant covers the right of publication at work, and the period begins at the end of thirty-five years from the date of publication of the work under the grant. It could also be at the end of forty years from the date of execution of the grant, depending on which would end earlier.
The termination has to be implemented by serving an advance notice in writing. This has to be signed by the number and proportion of owners of terminations under Clauses 1 and 2 of this sub-section. If not, then the signature has to be by their duly authorized agents upon the grant or grantee’s succession in title.
It has to be made sure that the notice mentions the date of termination. This date has to fall under the five-year period as specified under Clause (3) of this subsection. It also has to be taken care of that the notice shall be severed not less than two or more than ten years before that date. A copy of the notice has to be recorded in the Copyright Office. This has to be prior to the effective date of termination as a condition for its taking effect.
It has to comply in form, content, and manner of service with the requirements that the Register of Copyrights prescribes by regulation.
The termination of the grant will be effected notwithstanding any agreement to the contrary. A will or an agreement for future grants would also be included.

Effect of Termination

As soon as the effective date of termination is reached, all the rights that were covered by the terminated rights given to the author are reverted to the author, authors, and other people under clauses (1) and (2) of subsection (a), which also include those owners who had not accompanied in signing the notice of termination that was under clause (4) of subsection (a). However, there are the following limitations:

A derivative work that is prepared under the authority of the grant before its termination can continue to be utilized under the terms of the grant after its termination. However, this right would not extend to the preparation following the termination of other derivative works that are based upon the copyrighted work covered by the terminated grant.
Future rights vested upon the termination of the grant would become granted on the date the notice of termination has been served, as stated in clause (4)(a). All those rights that have been vested in the author, authors, as well as the other people that are named in and also in proportionate shares as stated by clauses (1) and (2) of subsection (a).
Keeping in mind the provisions of clause (4) of this subsection, any further grant or agreement to make a further grant of any right that is covered by a terminated grant would be valid. This is only if it has been signed by the same number and proportion of the owners with whom all the rights have been vested under clause (2) of the subsection. These are the conditions that are required to terminate the grant as provided under clauses (1) and (2) of subsection (a). A grant of such nature would be effective with respect to all people who have rights vested under subsection (a). All the people who did not join it would also be included. `
A further grant or an agreement to make a grant of any right that is covered by a terminated grant would be applicable only if it is made after the effective date of termination. But a further grant may be between the people as stated explicitly by clause (3) of this subsection and the original grantee or such grantor’s successor in the title after the notice of termination has been served as provided by clause (4) of subsection (a). This is an exception.
Termination of a grant under this section would affect only these rights that are covered by the grants under the title and would in no way affect any laws under federal, state, or foreign laws.
The grant, if not given, continues in effect for the term copyright provided by this title, unless and until termination is effected under this section.

Execution of Transfer of Copyright Ownership

Section 204 of the U.S. Copyrights Act of 1976 talks about the execution of the transfer of copyright ownership –

A transfer of copyright ownership that takes place through any procedure other than by operation of law would not be applicable unless an instrument of conveyance, or a note of memorandum of the transfer has been provided in writing and also has been signed by the owner of the rights conveyed or by such author’s duly authorized agent.
Usually, a certificate of acknowledgement is not a requirement for the validity of a transfer but becomes primary facie evidence of the execution of the transfer in situations where –

If the transfer is executed in the United States, then the certificate is issued by a person who has been given the power to administer oaths within the United States, or –
Where the transfer is executed in a foreign country, the certificate would be issued by a diplomatic or consular office of the United States or by anybody who has the power to administer oaths and whose power is proved by certificates of such an officer.

Recordation of Transfers and Other Documents

Section 205 of the U.S. Copyright Act, 1976, talks about the Recordation and Transfer of other documents

Conditions for Recordation – In a scenario of copyright ownership, a document that is related to a copyright may be recorded in the copyright office. This is, if, the document filed for recordation has the actual signature of the person who executed it or in cases where it has been accompanied by a sworn or official certification. This official certificate is a true copy of the original document that has been signed.
Certificate of Recordation – The Register of Copyrights, once it receives the receipt of a document as stated by subsection (a) and of the fee as stated by Section 708, would record the document, following which they would return it with a certificate of recordation.
Recordation as Constructive Notice – When a document is recorded in a Copyright Office, all people receive a constructive notice of the facts stated in the recorded document if –

The document or material that is attached to it specifically identifies the work to which it pertains.
Registration of the work has been made.

Priority that arises between conflicting transfers – When there is a conflict between two transfers, the one executed first will always be given preference if it has been recorded in the manner that is required to give constructive notice under subsection (c). This has to be within a period of a month after its execution in the United States, or at any time before recording the transfer in such manner. If not, then the other transfer would prevail if it was recorded first in such a manner and if it was taken in good faith for valuable consideration, or if it was on the basis of a binding promise to pay royalties and without notice of the earlier transfer.
Priority that arises between Conflicting Transfer of Ownership and Nonexclusive License – A non-exclusive license, even if it has not been recorded, would get precedence over a conflicting transfer of copyright ownership if the license was evidenced by a written instrument and also that it had been signed by the owner of the rights licensed or such owner’s duly authorized agent if –

The license was to be received prior to the execution of the transfer.
The license was received before the recording of the transfer and without notice of it.

Indivisibilty and DivisibilIty of Copyright in relation to the Copyright Act of 1909 and 1976

The Doctrine of Indivisibility and its Pitfalls

The Copyright Act of 1909 states that the transfer of copyright can only be made in whole and not in part. Where the copyright owner assigned anything less than the entirety of it, then such a transfer would only be recognized as a license and not an assignment. The person who would own the entire copyright would be known as the copyright proprietor.

The reasoning behind making the copyright indivisible was protection from alleged infringers. This can result from the harassment of successive lawsuits because only the copyright proprietor and an assignee can initiate a copyright infringement lawsuit. Even though this was a legitimate goal, the use of indivisibility as a solution only made sense when the exploitation of a copyrighted work consisted of the reproduction of copies of the original work. The doctrine of indivisibility started to fail with the development of new technologies. This is because of the advent of derivative works in many different kinds of media that were based on the original work. The doctrine of indivisibility started protecting copyright infringers from liability since mere licensees of the original work were unable to protect their work without the assistance of the copyright proprietor.

A licensee could not protect the original proprietor’s work since the owner of those rights consisted of less than the entirety of the copyright concerned, and thus, the licensee could not initiate action against a copyright infringer. Therefore, if a person was the licensee of print publication rights in a particular work and wished to bring a suit against an infringer, a licensee was in a position to do so only when the copyright proprietor agreed to join the licensee in the action. However, no proceedings could take place without the cooperation of the copyright proprietor and the person would not be able to proceed with the suit on his own behalf.

Divisibility of Copyright

In due time, Congress started to realize that the Doctrine of Indivisibility was ineffective in a society where original works could be used to create and make derivative works in many different forms and varieties. The Copyright Act of 1976 showed explicit statutory recognition of the principle of the right of divisibility in a copyright. Section 201(d)(1) of the Act states that the ownership of a copyright could be transferred wholly or in part by any means of conveyance or the operation of law, while Section 201(d)(2) of the Act states that all of the exclusive rights comprised in the copyright, including its sub-divisions could be transferred and owned separately. Thus, the 1976 Act, though not dividing copyright itself, allowed copyright owners to divide the exclusive rights comprising the copyright.

Section 106 of the U.S. Copyrights Act stated the exclusive rights that the copyright owner had in the copyrighted work. The exclusive rights could be divided among any number of recipients. The exclusive rights comprise of –

Reproduction of the copyrighted work
Preparation of the derivative works
Distribution of the copyrighted work
Public PerformaNce related to the copyrighted Work
Public Display of the copyrighted work
Digital Performance in sound recordings of the copyrighted work

Section 101 explains the six exclusive rights that could be restricted in scope by limiting the time or place that any right is effective. An example would be the exclusive right to publish and distribute a particular book only in the U.S.A., the exclusive right to the performance of a play only in Las Vegas, and the exclusive right to display pamphlets only on Saturdays. All these particular exclusive rights are divisible as per the 1976 Act.

Under this Act, a licensee can bring action against an infringer. However, since the exclusive licensee of a particular right can only sue for that particular right, the narrower the standing right is, the more difficult it becomes to sue. Thus, since a copyright is infinitely indivisible, it becomes essential for an author as well as the publisher to carefully state in their publishing agreement, both the nature and scope of the rights that are to be granted.

The important thing here to note is that for the grant of a valid license, the transfer can only be in writing. It is not a compulsion for a non-exclusive license to be in writing. Section 204 of the Act makes it clear that the transfer of an exclusive act that is not done in writing will be held invalid. Several courts have upheld this when the transfers were not in writing.

The “grants of rights” clause in a publishing agreement or distributor agreement enumerates the list of rights that are transferred by the author as well as their extent. The granting clause can either be very wide or narrow in scope, depending on the extent of the rights transferred. The transferee is only in a position to entitle those rights that have specifically been enlisted in the grants clause. In a scenario where he exercises any rights beyond the rights enlisted and granted to him, this would result in “copyright infringement”.

Authorship in Copyright

Copyright is defined as a form of protection that is provided by the law to any person who creates “original works of authorship”. Copyright protects musical, dramatic, artistic, and other works that would qualify as creative work. An author under U.S. law is any person who creates copyrightable work, or if the copyrightable work is created in the scope of employment, then the employer becomes the author. The person who is the author of the work is entitled to copyright in the work if the work is original and fixed. The work can even comprise a compilation of existing data. Compilation is defined as a form of work that has been formed by the collection and assembling of materials that are pre-existing or of data that is selected, coordinated, or arranged in such a way that the resultant work as a whole constitutes an original work of authorship. The compilation includes collective works that have been entitled to copyright protection.

The copyright plays a role in protecting the form of expression of the original work rather than the subject matter. A machine’s description could be copyrighted, but that would only result in preventing people from copying the description However, it would not prevent them from writing a description of their own and would also not stop them from using the machine. Therefore, essentially, a copyright would protect original forms of authorship that are fixed in a form of expression. This does not have to be directly perceptible, as long as it can be communicated with the help of a machine or a device. Copyrightable work comprises these categories:

Works of Literature
Works of music that include the accompanying words
Dramatic Works that include the accompanying/background music
Pantomimes works and works of Choreographic
Graphic, pictorial, and sculptural works
Motion Pictures as well as other audio-visual works
Sound Recordings and
Architectural Works

Under the U.S. Copyright Act of 1976, exclusive rights have been granted to an author or the owner of a copyrightable work that falls under any of the above-mentioned categories. The exclusive rights of copyright that are provided to the author are completely divisible. As mentioned before copyright in a work would initially vest with the author or authors of the work. Following this, the author can assign some or all of his rights to another author, for example, a publisher. If the work has been published in a formal publication, then the publisher becomes the owner of the rights assigned

When just a single author is involved in a creative work, he/she can rightfully claim copyright. A joint work is defined as a work that is prepared by two or more authors with the intention of merging their contributions into parts that are inseparable from a unitary whole. If the work is a collaborative effort between several authors, then each of those authors has ownership of the copyright. Co-ownership is representative of each author’s rights to the work.

If the copies of the work are to be distributed to the public for sale, then the date on which the sale is made for the first time is called the publication date. Copyright protection in such a scenario is calculated to be 75 years from the date it was published or 100 years from the date of creation. The shorter one would be considered.

The protection afforded by copyright has further been clarified by the U.S. Copyright Act of 1976. Currently, a copyright owner owns the exclusive right to reproduce the work, as well as to prepare spin-off works that are based on the copyrighted work and sell, perform, or display the copyrighted work in public.

A copyright owner possesses the exclusive right to prepare or authorize the preparation of a derivative work based on the copyrighted work. A derivative work is known to be taken as a whole. If it represents an original work of authorship, then it may be separately copyrightable. The copyright would only cover the original portions of the derivative works in these situations.

Copyright protection arises by default when an original work of authorship is fixed in a tangible medium of expression that is known currently or gets developed later, like written film, etc. It is not a requirement that a copyright notice be placed on the work, that the work be published, or that the work has to be deposited or registered with the Copyright Office of another body.

Collective Works

A Collective Work is defined as a compilation consisting of a number of contributions that constitute a separate and independent work and are brought together as a whole under Section 101 of the Copyright Act.

Authorship in such cases of collective works arises from the original selection and arrangement of the individual works that form a part of the collective work.

Under the U.S. Copyright Act of 1976, collective work is considered for registration. A registration includes copyright authorship in the collection, coordination, or arrangement of the work. A registration would cover the Collective work as a whole and would also cover the individual work covered under it if

The owner of the collective, as well as the individual work, is the same.
The individual works have never been previously published or registered before.
The individual works are not in the domain of the public.

Representative examples of collective work for the purposes of registration would include;

A newspaper or magazine that might contain multiple articles, photographs, etc.
Anthology containing multiple poems, short stories, and essays.
An online encyclopedia that contains multiple articles and entries on various topics.
An album that contains multiple sound recordings embodying multiple musical works.
A DVD that contains a motion picture, theatrical trailer, deleted scenes, and audio commentary from the director.

A Collective Work would not include –

A single, unified work containing separate elements like

A novel that consists of multiple chapters.
A song containing melody, harmony, and rhythm.
A drawing that is done with pencil and ink.
A carpet design consisting of overlapping figures and colors.
An architectural work or a technical drawing that contains several illustrations of the same object.

A unified work jointly by multiple authors. This includes a musical with a script, and lyrics by two or more authors, etc.

Motion Pictures comprises screenplay, soundtrack, acting, directing, costume design, cinematography, and other production elements that are contributed by several authors.
A book for children that has been created by a writer and illustrator.
A Book

One contribution to that of a collective work.

Contribution to a Collective Work

A contribution to a collective work is considered to be a separate and independent work that has been included within a collective work under Section 201 of the Copyright Act. A contribution that has been made to a collective work can be registered separately from the collective work, or it can be in combination with the collective work if specific requirements have been met.

Examples of independent works within a collective work would include:

An Article placed within a periodical.
A song that has been included in an album.
Articles and photographs appearing in a newspaper.

Registration of Collective Works with that of Individual Works therein after

Collective work and its individual works can be registered on one application along with one filing fee in certain situations (Circular 34 of the US Copyright Office). These situations include:

Every work within the collective work comprises a certain amount of original authorship.
The owner of the copyright for individual and collective works is the same party.
The individual works have not been published or registered previously.

For example, an album containing multiple sound recordings embodying multiple musical compositions is taken to be a collective work for the purposes of registration. Normally, the party owning the sound recordings would also own the copyright in the album. This is usually because the party is responsible for creating the album as a whole. In such a situation, the album as well as multiple sound recordings could be registered on one application as a collective work. This is while keeping in mind that the recordings have never been published before.

For instance, if the copyright owner is the owner of both the sound recordings as well as the musical compositions that have been embodied in each recording, then the album, sound recording, and musical compositions could be registered on one application as a collective work. This is while assuming that the compositions and recordings have never been registered before.

In contrast to this, if the copyright owner of the album is not the owner of the musical compositions and vice-versa, and if the recordings have been published before, then each composition has to be registered separately as an individual contribution to that of the collective work.

If multiple works have been submitted with one application, then the Copyright Office can register the work as a collective work, and the office may add an annotation to the Certificate. This Certificate would form the “basis for the registration: collective work”.

The Scope for Registration of a Collective Work

When it comes to the purposes of claiming statutory damages, there is no difference between a collective and a single work. Thus, registering a collective work together with that of the individual works contained in it can have important consequences in an action for infringement. Section 504(c)(1), states that a copyright owner can recover statutory damages for all the infringements that are involved in the infringement action with any one work and also for all the parts of compilation as well, while all of this would constitute one work. This statute also defines a collective work as a compilation.

In the case of New York v. Tasini (2001) it was stated by the Supreme Court that when a freelance author contributes to a collective work such as a newspaper or a magazine, the Copyright Act of 1976 would recognize two distinct copyrighted works –

The copyright of each separate contribution to a collective work is distinct from the copyright of the collective work.
Copyright would vest in the collective author and would extend only to the creative material that is contributed by such author.

Works Made for Hire

Work that is “made for hire” is covered in a few situations. These are –

When the employee creates it as a part of his duties.
When the work has been created as the result of an express written agreement. This agreement is between the creator and the party commissioning it. The determining factors are those that were in existence at the time of the work and have to be determined.

When a work has been “made for hire”, the hiring or commissioning party is considered to be the author and the copyright owner. The work that is “made for hire” can be very complicated and may have fatal consequences for both the individual who created the work as well as the party who claims to be both the author and the owner of the copyrighted work.

Scope of Employment

For the work of an employee to be considered as being made for hire, it has to be ensured that the work was created by the employee within his “scope of employment”. However, the Copyright Act of 1976 does not give any particular definition of “employee”, “employer”, or “scope of employment”. The U.S. Supreme Court in the case of Community for Creative Non-Violence v. Reid, (1989), stated that Congress had the intention of understanding these terms in light of agency law, which governed the relationships between employers and employees, and that the courts should focus on the general common law of agency and not on the law of that particular state to give meaning to these particular terms. There are some questions that have to be answered to ensure that the work had been created by the employee within his “scope of employment”:

What was the skillset that was required to create the work?
Where had the work been created? Did the hiring party give the space, tools, and essentials that were required to create the work concerned?
How long had the relationship been between the parties? It is also important to note whether the hiring party directed the creator as to how long to work.
How had the creator been paid, and had the hiring party offered employment benefits?
Did the creator have his own business, and was he able to hire and pay assistants?
Had the work been created during the regular business hours of the hiring party, and was the work created pursuant to the creator’s usual tasks? Also, whether the work was created during the author’s authorized working time has to be taken into account.

Specially Ordered or Commissioned Works

A specifically ordered or commissioned work would qualify as a made for hire in these situations:

The work has to fall within the nine categories of work that have been listed above. These works are eligible to be specifically ordered or commissioned as works made for hire.
A written agreement between the party that has ordered the work and the person responsible for the creation of the work.
The parties have to expressly agree in the written agreement that the work concerned is work “made for hire”.
It is essential that the agreement be signed by all the parties concerned.

If the work fails to satisfy all of the above-mentioned requirements, then it fails as a work made for hire.

One of the ways to dispute a work as a work made for hire is that the creator of the work was an independent contractor. The contractor had no express agreement that the work done would be work made for hire, and no assignment of the rights had been agreed to. The author is usually considered to be an independent contractor when he or she controls the manner of his or her work and incurs the expenses of having created the work independently. It has also been observed that in some situations where a work has not been deemed to be a work made for hire, a party could still assert its ownership over the work as that of a joint author.

Duration of Copyright Protection

Section 302 of the U.S. Copyright Act states the duration of copyright protection for all the works that had been created after 1 January 1978.

In General

A copyright that was created on or after 1 January 1978, would subsist from its creation and except for the following exceptions as provided below, would endure for the entire life of the author and 70 years after the death of the author.

Joint Work

In situations where a joint work is prepared by two or more authors who had not worked for hire, the copyright would endure a term that would consist of the life of the last surviving author and would continue till 70 years after the passing away of the author who lives the longest.

Anonymous Works, Pseudonymous Works, and Works that have been Made For Hire

In cases of anonymous work, pseudonymous work, or work made for hire, the duration of the copyright would extend to a period of 95 years from the date of its first publication or a term of one-twenty years from the years of its creation, whichever would expire first. If, before the completion of such a term, the identity of one of the anonymous works is shown in the records of a registration for work under sub-sections (a) and (d) of Section 408, or the recordations that this sub-section talks about, in such a situation, the copyright would continue till the term as stated by subsection (a) or (b). This would be dependent on the lifespan of the author or authors whose identities have been revealed. A statement has to identify the person filing it, the nature of that person’s interest, the source of the information that has been recorded, and the particular work affected, and it has to comply in form and content with the requirements of the Register of Copyrights prescribed by regulation in cases of Anon.

Record relating to the Death of Authors

Any person who has any interest in copyright could, at any time in the Copyright Office, record a statement stating the date of the passing away of the author of the copyrighted work or provide a statement that the author was alive on a specific date. The statement would also have to identify the person who files it, the nature of interest of that person, and the source of the information recorded. It has to comply in form and content with the requirements of the Register of Copyrights. The Register maintains a record of information that relates to the death of the authors of copyrighted works that is based on such statements that have been recorded. The Register would consider the data that is contained in any of the records of the Copyright Office or in other reference sources.

Presumption as to the Passing away of the Author

A period of 95 years from the first year in which the work was published, or a period of 120 years from its creation, is observed. Whichever would expire first, any person obtaining a report from the Copyright Office that proves that the author of the work is no longer living or has died in less than a period of 70 years would be entitled to the benefits of the assumption that the author has been dead for a minimum of 70 years.

Duration of Copyright Protection for works that have been created before 1978 but have not been published

This is governed by Section 303 of the Copyright Act of 1963. In cases where the works were created before 1 January 1978, have been by default given copyright protection. Usually, the duration of copyright protection is usually calculated in the same way for works that have been created after 1 January 1978.

Duration of Copyright Protection for works created and published, or registered before 1978

This scenario is governed by Section 304 of the Act. Covering two situations, it states that either the copyright was received on the date on which the work was published or it could also be on the date of registration if the work has been registered as unpublished. In either of the two scenarios, the copyright protection would be for a term of 28 years from the date that it had been secured. During the last i.e. the 28th year of the term, the copyright would be eligible for a second renewal for 28 years more. The work enters the public domain after the initial 28-year term in case of no renewal.

The current law for copyright protection has been extended from 28 to 67 years for all those copyrights that existed as of 1st January 1978. These works were made eligible for protection for a period of 95 years. A renewal filing is no longer a requirement to extend the original 28–year copyright term to the full 95 years.

Simply put, if a work has been published between 1923 and 1963, then there is a requirement for application for renewal with the Copyright Office. If not, then the work would enter the public domain. If they apply for a renewal, then these works would have a 95-year copyright term and would enter the public domain not before 2018. If the work concerned has been published between 1964 and 1977, then there is no requirement to file for a renewal. These works would automatically have a 95-year protection.

Enforcement of Copyright

If a person’s copyright gets infringed, then they have been given the right to file a lawsuit in federal court. Remedies are available that include obtaining an injunction or restraining order so as to prevent additional violations, an award for monetary damages, and possibly the fee of the attorney.

Under normal circumstances, if a person has reason to believe that he or she is not infringing, then the damages that the person will have to pay an innocent infringer is nominal. In such cases, the court also orders the nominal infringer to stop infringing. Defenses that might be raised in response to a copyright lawsuit are that –

Too much time has passed between the time that the infringement happened and that of the lawsuit.
The infringement was innocent.
The work that had been infringed had been created independently.
The person infringing had a license from the original owner.
Fair use

For a person to bring a civil lawsuit to enforce his copyright, it is essential that he have his work registered with the Office. It is not an enforcement agency and is not in a position to offer legal advice.

A preregistration procedure is present at the Copyright Office to provide an opportunity to provide for copyright during the development stages of specific work. Pre-registration would allow a copyright owner to sue for copyright infringement during the time it is in the process of being prepared for a commercial release. The Copyright Office would also allow the speedy processing, known as the “special handling” of an application for registration of a claim to copyright. This happens in a few cases if the author concerned has a compelling reason for expedited processing, for instance, potential litigation.

If the person has registered within a period of three months of the publication date of the work or before the infringement has occurred, there is a legal presumption that a person’s copyright is valid. Statutory damages are provided up to the amount of $150,000.

Criminal Prosecution for Copyright Infringement

In certain cases, copyright infringement is not just a matter of civil litigation. People can also be prosecuted for criminal misdemeanor or felony. The U.S. Department of Justice would enforce this aspect through the means of criminal prosecution. Under Section 506 of the Copyright Act of 1976, any person who wilfully infringes on a copyright could be criminally prosecuted. This is, if, the accused concerned committed infringement for financial gain or by the reproduction or distribution of a copyrighted work. It can also be for the distribution of work that was prepared for commercial distribution by making it available on a computer network that the public is in a position to access when the person knew it was intended for commercial distribution. Forfeiture, restitution, and destruction are among the other penalties that might be given.

There are no specialized copyright courts in the United States. The federal courts have jurisdiction under the Copyright Act, however, if the claim involves state law issues such as the breach of a contract, then the state courts would have jurisdiction over the case. The federal courts are known to have more experience than the state courts when it comes to matters related to copyright issues.

Case laws related to Copyright Infringement

Copyright Infringement Cases Related to Films

S. Victor Whitmill v. Warner Bros. Entertainment Inc., (2011) – Copyright Infringement Case Involving the Movie – The Hangover: II

S. Victor Whitmill v. Warner Bros. Entertainment Inc, (2011) – During the month of April 2011, a tattoo artist named S. Victor Whitmill sued Warner Bros. for the infringement of copyright in the movie, The Hangover Part: II.
In the film, the character of Stu, after waking up after a night of debauchery in a Bangkok hotel, finds himself with a replica of Mike Tyson’s tattoo.
The plaintiff had specifically designed this tattoo for Mike Tyson and therefore claimed that he owned the copyright over the work. Whitmill argued that Warner Bros. had no authority to use his work in their film or in any of the promotional material that was attached to the movie The Hangover Part: II.
The lawsuit almost stopped the release of the film, and there was also a possibility that if the two parties had not come to an agreement then the face of the tattoo would have to be digitally lifted from Helm’s face for the home video release. Finally, Warner Bros. settled the case with Victor Whitmill for an undisclosed amount after the deal was sealed during an all-day mediation that was attended by both Whitmill and his layers as well as the Warner Bros. Legal team.

Irish Rover Entertainment, LLC v. Aaron Sims et Al, (2023) – The Stranger Things Controversy

In the case of Irish Rover Entertainment, LLC v. Aaron Simes et Al, (2023), on 15 July 2020, Irish Rover Entertainment brought a lawsuit against the popular OTT platform, Netflix. They claimed that the Duffer Brothers had lifted everything from the screenplay of Jeffrey Kennerdy’s “Totem”.
While it was observed that there existed some similarities between Totem and Stranger Things, both works involved a group of teenagers taking down evil organizations, supernatural beings from different dimensions, and a young girl who possessed psychotic abilities. However, the Duffers denied that they knew anything about the screenplay of the plaintiff during the creation of Stranger Things.
The District Court in this given case denied the motion of Netflix to dismiss the motion under Rule 12(b)(6). Netflix argued that the works were not “substantially similar, and provided a detailed analysis under the “extrinsic similarity” test under Rule 12(b)(6).
The Court offered no analysis as to whether it deemed the two works to be similar in any way or not. The District Court in this particular case gave the ruling that expert testimony was required to determine the question of substantial similarity.

Marvel Characters Inc., v Kirby, (2013)

In the case of Marvel Characters Inc., v Kirby, (2013), the four Kirby children – Neal, Lisa, Susan, and Barbara had submitted a filing with the Copyright Office. This was to take back the copyrights related to several Marvel properties. These include – Thor, Nick Fury, Hulk, X-Men, Avengers, and a group of classic monsters like Groot and Fing Fang Foom who became members of “Guardians of the Galaxy”. The four heirs also claimed that Kirby was the original copyright owner of Spider-Man.
The basis of their claim was a provision that was enacted as a part of the 1976 reforms that gave the creators, as well as the successors, the right to terminate a transfer of copyright that had been previously. The duration of the copyright used was for a period of 28 years which could then be extended to a maximum total of 56 years.
However, an exception also needs to be taken note of. Creators and their heirs cannot claim copyright ownership for a work that was originally made for hire. This is because the creator would never have a copyright interest in the first place. Millions of dollars can be at stake when a copyrighted material disputed is a work for hire.
Marvel chose to appeal against the validity of the Kirby termination by filing in the federal court in New York. The Court is a part of the Second Circuit of the U.S. Court of Appeals.
The District Court as well as the Appellate Court in this particular case agreed with the arguments of Marvel that the work of the father, Jack Kirby was a work-for-hire. Therefore, neither the creator nor their heirs had any claim over the copyrighted work. This effectively ended the family’s attempt to exercise termination rights.

Copyright Infringement Cases Related to Literary Works

Warner Bros Entertainment Inc. et al v. RDR Books et al, -J.K. Rowling against Lexicon, (2008)

In the case of Warner Bros. Entertainment Inc. et al v. RDR Books et al, (2008), Lexicon was free of charge website. It acted as an encyclopedia for Harry Potter facts. Even J.K. Rowling supported this website.
The fact that this website planned on printing and publishing a book is what went against Rowling’s interests, as she intended to print a companion book and donate proceeds that were made from this book. The Lexicon book was supposed to contain 2,437 entries which would contain direct quotations, summaries of scenes, and plot details from Rowling’s book.
The main argument for Rowling in this case was copyright infringement. The main issue, in this case, was if Lexicon’s use of Rowling’s work fell under “fair use”.
The Court kept note of the fact that Rowling had already published companion books and was planning on releasing her own Harry Potter Encyclopedia. This would result in direct competition with the Lexicon books, which could result in competition for millions of dollars
The Court, in this case, held that the unpublished book of the Lexicon infringed on the work of Rowling. The Court permanently enjoined the book’s publication.

Copyright Infringement Case Related to Appropriated Art

Cariou v. Prince, (2013)

In the case of Cariou v. Prince, (2013), appropriation artist Richard Prince implemented changes to more than forty images by Patrick Cariou.
Prince in this case argued that he had made something original with the work and thus fell under the “fair use” doctrine.
Cariou, on the other hand, argued that Princle was liable for copyright infringement.
The United States Court of Appeals for the Second Circuit decided this case in favor of Cariou. They stated that the changes that Prince made to the photograph were not impactful enough to change their meaning.
Prince appealed against this ruling and won. The court found out that the appropriated art had a different nature as well, and its target audience was different from the work that was originally created.

Conclusion

Copyright ownership in the United States of America is a basic and fundamental concept that plays a big and important role in the protection of creators as well as an extremely important role in encouraging the production of original works. Basic points like automatic protection, exclusive rights, duration, transfer and licensing, work for hire, joint ownership registration, fair use, and public domain are essential to be understood by creators, businesses, and individuals to navigate the complexities of copyright law. Having adequate knowledge would ensure that creators would be rightfully rewarded for their efforts. It would also help in striking a balance that would allow the enrichment of society and culture by providing access to copyrighted work in particular circumstances. Copyright Ownership helps promote creativity and innovations, as well as the protection of intellectual property in the United States

Frequently Asked Questions

Why should a person register his/her work with the U.S. Copyright Office?

Although copyright registration is not a compulsion, it is always a better idea to do so. A person needs to register his work with the U.S. Copyright Office before they are legally entitled to bring a lawsuit so as to enforce it. Another positive is that the registration process for a copyrighted work is relatively inexpensive and straightforward. A person can register for a copyright at any time that he chooses to. However, registering it promptly can pay off in the long run. Timely registration is registration that is done within a period of three months of the publication date of the work or before any copyright infringement actually begins. This makes it much easier to sue and to recover money from an infringer. Also, timely registration creates a legal assumption that the copyright is valid and allows a person to recover up to $150,000.

What is a valid copyright notice and why is it important?

A valid copyright notice is one that includes the word copyright, has a c in a circle, has the date on which it was published, and the name of the author or the owner of all the copyrights in the published work. Even though a copyright notice is not an essential requirement, having one provides many benefits. When a work has a valid notice, the infringer is no longer in a position to argue that he was not aware of the fact that the work was copyrighted. This would make it much easier for a person to win a copyright infringement case. It can also help to collect enough damages that would help to make the cost of the case worthwhile. Also, the very existence of a copyright notice might help to prevent infringement because the would-be infringers would realize that the person is cognizant of their property rights. Lastly, a copyright notice can make it much easier for a person looking to infringe to track down a copyright owner and to make “fair use” of his work.

Are ideas protected by the U.S. Copyright Law?

The long-standing principle of copyright would prove that ideas are not protected by the Copyright law. A copyright law can protect the expression of ideas, but it cannot protect the idea itself. Ideas form a part of the public domain and no single person can have a monopoly over an idea. This basic copyright principle would apply to any idea, no matter how novel the idea might be. Section 102 of this Act makes it very clear and evident that copyright protection for an original work of authorship would not be given and provided to any idea, procedure, system, method of operation, principle, or discovery. This has also been clearly stated in the case of Baker v. Selden, (1879). For example, if a person creates an idea for a business, it is not the idea that would be protected. However, any fixed works like marketing documents, business plans, website articles, or posts could be protected by copyright

Has the U.S. Copyright Act of 1976 kept pace with the advent of advanced technology and the digital age?

Yes, the Copyright Law of the U.S.A. has kept pace with the advancement in technologies and the digital age. The original authorship appearing on a website might be granted copyright protection. This could include writing, artwork, photographs, and other forms of authorship. All of these are provided by copyright protection. The procedure for the registration of the contents of a website can be found in Circular 66 of the Copyright Registration of Website and Website Content. Even though a person might copy material from the internet, it might lead to copyright infringement. Though it might seem that videos, images, texts, and other content online can be copied and distributed without permission, it has been observed in most cases that this is not the case. Authors retain copyright although they might post their content online. Also if a person downloads a copyrighted work, it does not mean that he is free to disseminate the work to others, either electronically or through a hard copy.

A copyright owner is entitled to prohibit the download and printing of material online.

Are tweets given protection under the law and who is the owner of the tweet if copyright protection is provided?

Yes, a tweet has been given protection under the U.S. Copyright Law. A tweet can be protected by copyright two essential criteria have to be fulfilled. First, the tweet has to be an original work of the author, i.e., the content of the tweet has to be original to the author. This means that the expression of the tweet cannot be copied from anywhere else, and it has to possess at least some level of creativity. For example: A tweet about five popular shows would never be protected by Copyright, but if the tweet or thread of tweets provides an analysis of the five shows then, the tweet can be protected by Copyright. Secondly, it is essential that the tweet contains more than just a name, a single word, or a short phrase. This is because all these particular elements are not protected by the copyright law. Although every tweet has a word limit, a lot of meaningful content can be expressed in that word limit. Additionally, “Threaded messages” provide the chance for the concerned person to tweet extended messages despite the word limit. To understand who is the owner of a tweet having copyright, it is best to read Twitter’s terms of Service. A person’s tweet is his/her own content, but Twitter might have a license to use such content. Twitter users have also been given power to redistribute the posts by retweeting them.

Is there the presence of a “Poor Man’s copyright” and if not then does the postmark date provide the creator any value?

“Poor man’s copyright” is defined as the practice of mailing a copy of a person’s work to himself/herself. A work of original authorship has been granted protection under the U.S. Copyright law from the moment it is fixed in a medium of expression. However, the Copyright Act also clarifies clearly that a certificate from the Copyright Office is a pre-requisite to bringing an action of copyright infringement before a Federal Court. Mailing a copy of one’s own work to oneself does not serve as a substitute for registering their work with the Office. A “postmark on a “poor man’s copyright” proceeds usage in providing some value to a creator in an infringement action. This is because it could be used as evidence that there was the existence of the work on a particular date. This can be used to prove the fact that the work had been created before the creation of another work.

If a person makes a mistake during the registration process (for example the person makes a mistake in the publication date) or notices that a mistake has been made by the Copyright Office, then should the person inform the Copyright Office for the registration to be valid and if so, how might they correct this information?

If a person realizes that a mistake was made while the application was still awaiting examination, then the person might contact the Public Information Office of the United States Copyright. Copyright to request the correction if the number of corrections is relatively minor. If the corrections are more than just minor changes then the Registration Program might send an application back to the person for correction and resubmission, or they can provide the correction for a fee based on time spent on correcting the errors. A certificate of registration in many situations might already been issued. In such cases, the only way to make corrections is by filing a Supplemental Registration on form CA. This has to be accompanied by a fine of $130.00. Supplementary registrations might not alter the deposit, but they can correct or amplify the information that is contained in the original application. If the person finds out that the Office made a mistake, then they have to contact the Public Information Office to inform them of the error that has been committed by them during the process. If the Office then determines that the error had been made by the Office, then in such a scenario the mistake would be rectified by the Office and a rectified certificate would be sent to the person without any charge.

Can a person’s tattoos be protected by Copyright?

Yes, a person’s tattoos can be protected by Copyright under the copyright law of the U.S.A. Copyrights protect pictorial as well as graphic works as long as they are fixed objects and display originality. Since tattoos are fixed as per definition, the main question in determining whether a tattoo would be protected by copyright is its originality. It is essential that the expression of the work should be an original of the author. It should possess a minimum amount of creativity and should not be copied from anybody else.

What type of Dances can be protected by the Copyright Law?

The Copyright Law of the United States includes dances in the “pantomimes and choreographic” works category of protected works. This category plays an important role in protecting dances that were created after 1 January 1978 and are fixed in a tangible medium of expression. However, there are some types of dances that are not protected by copyright law including choreographic and pantomimes that consist of ordinary motor activities, commonplace movements or gestures, and social dances. This is because these works might lack sufficient authorship. For example, ballroom, folk, square, line, etc.

Has there been a blanket exemption that has been provided for the use of educational works or use by educational institutions when it comes to copyrighted works?

There is no blanket exemption from copyright liability that has been provided for the use of educational works or use by educational institutions when it comes to works that are related to copyrights. Although there are many activities that are related to teaching, scholarship, and research that would qualify as fair use, none of them automatically do so. When a specific work falls under the scope of “fair use” of copyright is determined and varies from case to case by applying the four statutory factors.