A faculty member has begun work on multi-media courseware materials she
plans to use with her students for Geology 301. She has made arrangements
with the media center for technical support and obtained a $15,000 grant
from the University to help fund her project. She plans to hire a graduate
student to do programming for her. Her brother-in-law (a commercial
artist) has agreed to do 11 graphic illustrations for her.
- Who will own the courseware materials and why?
The courseware will be jointly owned by each contributor
of copyrightable expression if, at the time their work is
created, all of them expect their contributions to be merged into a unified
whole and intend to be joint owners. This means that the faculty member, the University (as owner of the media center contribution), the graduate student programmer
and the brother-in-law all could be joint owners of the courseware
materials if they all intend that result.
The copyright law addresses ownership in Section 201(a)
initial ownership, and Section 101 definition
of a joint work. Numerous court cases further refine the practical
meaning of these sections. Please see "Who Owns What" for more detailed information
- Doesn't who pays for the work determine who owns it?
Believe it or not, who pays for the work is irrelevant to copyright
ownership. Still, many people believe that if you "hire" someone to do work for
you, you will own it, probably because of the "work-made-for-hire"
doctrine in the copyright law. Unfortunately, this name is very misleading.
Just hiring a person is not enough to make a copyright belong to
someone other than the author of a work. Here's how it really works:
- Employee working within scope of employment: If you
an employee and the work you are doing is within the scope of your
employment, your employer will own the work and be considered the author of the work
for copyright purposes; or
- Work made for hire: If you are hired to create something
and you and the person hiring you sign a written contract before you get
started that states that what you are about to do is a "work made for
hire" and, in fact, the work fits into one of the following
categories, it will be considered a work made for hire:
If it meets all these requirements, it will be owned by the person hiring
you and he or she will be considered the author of the work for copyright
- contribution to a collective work
- part of a movie or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test, or
- an atlas
- If the legal determination of who owns a work
isn't what you want or expect, can you change ownership, and how do
you do it?
Let's answer this by looking at the brother-in-law's illustrations. Are
they works for hire under the law? Probably not, because there's no mention of
a contract signed by both the faculty member and the brother-in-law before
the work began and it's not clear whether the work would fit into any of
those nine categories. The brother-in-law probably is not the faculty
member's employee either. That means he ownes his contribution and he will be a joint owner if he
is contributing copyrightable expression, intends that
expression to be merged into the unified work as a whole, and he and the faculty member both intend that he will be a joint owner.
This is probably not what the faculty member wants. It would have been best to make the illustrations "works for hire," but, since she did not do that, she
should clarify the situation by having her brother-in-law sign a copyright assignment. This is a
contract that can be signed at
any time to transfer the copyright from the author/artist to someone else.
This won't make her an author under the law, as the work
for hire doctrine would have, but it's the second best thing - she will be a copyright
owner by way of assignment.