Mbu 2520 spring 2018 chapter 4

MBU 2520 Spring 2018 - Eric M. Griffin
Copyright Ownership?

WHEN DOES
COPYRIGHT OWNERSHIP BEGIN?
.
Copyright ownership attaches upon CREATION of a
work.

.
WHO OWNS A WORK
AT THE TIME IT IS CREATED?
Section 201(a) of the 1976 Copyright Act provides that
the author of a work is the initial owner of the
copyright.

.
JOINT WORKS:
A joint work is a work prepared by two
or more authors with the intention that
their contributions be merged into
inseparable or interdependent parts of
a unitary whole.

.
JOINT WORKS:
REQUIREMENTS OF OWNERSHIP
1. Two or more authors must contribute original material to
the creation of the work
2. INTENT: Must intend that contributions be combined at the
time of creation

.
JOINT WORKS:
THE INTENT REQUIREMENT
Courts will look at:
• Conduct of Contributors
• Quality and Quantity of Contribution

.
JOINT WORKS:
RIGHTS AND DUTIES OF OWNERS
• Either author can grant an NON-
EXCLUSIVE LICENSE to a third
party to use the work (BUT the
granting of an exclusive license
requires permission of ALL owners)
• The owner granting the non-
exclusive license must ACCOUNT to
the other owner (i.e. – pay the other
owner his/her share of the earnings)

.
PAPA’ JUNE MUSIC V.
MCLEAN
(1996)
The court held that McLean was
a joint owner of the copyrights
for the songs, and because the
parties did not have a written
agreement specifying a different
arrangement for these songs,
McLean and Connick each
owned 50 percent under
Section 201( a) of the Copyright
Act.

.
ULLOA v UNIVERSAL
(S.D.N.Y. 2004)
Although the court believed that
Ulloa may have made a
copyrightable contribution to the
song, it decided that Ulloa was
not a joint author since there
was no evidence that Jay Z
intended to share authorship
with her.
http://mcir.usc.edu/audio_video/cases/izzo.wma

.
WORKS MADE FOR HIRE:
• An EXCEPTION to the general rule
that copyright ownership vests in
the author at the time of creation.
• Instead, the person or party on
whose behalf the work is created is
considered to be the author and
initial copyright owner (e.g., the
employer).

.
TWO CATEGORIES
1. Prepared within the Scope of Employment
2. Specially Ordered or Commissioned Works
• Must be in writing
• Must fit into one of the specific categories in the statute

.
Important Differences from Author Owned Works
• Initially belongs to employer or to the party ordering or commissioning the
work
• Term of protection is 95 years from publication OR 120 years from creation,
whichever expires first
• No termination of transfer right (because there is NO transfer of
ownership)

. Community for Creative Non-Violence v. Reid
490 U.S. 730 June 5, 1989
Supreme Court held that a sculptor who was hired to create a sculpture was an
independent contractor rather than an employee. The Court considered a group of
factors in reaching its conclusion to determine whether a person is an employee
or an independent contractor.
Why does the answer depend on whether Reid was an employee or an independent
contractor?
• If Reid was determined to be an employee, a written agreement acknowledging the
sculpture was a work made for hire is NOT required. If Reid was determined to be an
independent contractor, a written agreement is REQUIRED.
• In this instance, the SCOTUS determined that Reid was an independent contractor.
There was no written agreement between the parties, thus Reid was the owner of the
work.

.
Community for Creative Non-Violence v. Reid
THIS CASE ESTABLISHED THE TWELVE FACTORS TO BE CONSIDERED WHEN DETERMINING IF
A PERSON IS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR:
1. The skill required to do the work
2. The source of tools and materials used to create the work
3. The location of the work performed
4. The duration of the relationship between the parties
5. Whether the hiring party has the right to assign additional projects to the hired party
6. The extent of the hired party’s discretion over when and how long to work (control)
7. The method of payment for the work
8. Which party decides whether assistants will be used and which party pays them
9. Whether the work is part of the regular business of the hiring party
10. Whether the party creating the work is in business for itself
11. Whether the hired party receives employee benefits from the hiring party
12. The tax treatment of the hired party
NOTE: There is no rule on how many of these factors must apply in order to determine whether a person
is an employee or an independent contractor – it depends upon the facts of the particular case.

.
When is a Work Prepared
“within the Scope of Employment”?
Generally, a work will be considered to be made “within the scope of
employment” if:
(1) it is the type of work that the employee is paid to perform;
(1) the work is performed substantially within work hours at the work place;
and
(1) the work is performed, at least in part, to benefit the employer.

. WORKS MADE FOR HIRE: Specially Ordered or Commissioned
Works
Can be works made for hire if the parties agree in WRITING and the work
FITS one of the following nine categories:
(1) A contribution to a collective work (e.g., an article in a magazine)
(2) A part of a motion picture or other audiovisual work (e.g., a screenplay)
(3) A translation
(4) A supplementary work (e.g., a work prepared for publication as a secondary part of a
work by another author such as a foreword, pictorial illustration, musical
arrangement, bibliography, appendix, etc.)
(5) A compilation
(6) An instructional text (e.g. a manual for stereo equipment)
(7) A test (e.g., ACT, LSAT)
(8) Answer material for a test
(9) An atlas

.TWO MOST COMMON TYPES OF TRANSFERS:
1. Assignments: occurs when a copyright owner transfers all or part of the ownership
interest in a copyrighted .
2. Exclusive Licenses: occurs when a copyright owner transfers one or more of its
exclusive rights but may retain one or more rights as well.
(a) An exclusive license gives the licensee the right to sue infringers of its rights and
to transfer its rights to others.
(a) A non-exclusive license gives the licensee permission to exercise one or more of
the exclusive rights but the copyright owner can still allow others to exercise the
same right.
Neither an exclusive license nor a non-exclusive license involves a transfer of
ownership.

.
TRANSFER OF OWNERSHIP (ASSIGNMENT):
Section 204(a): A transfer of copyright ownership, other than by operation
of law, is not valid unless an instrument of conveyance, or a note or
memorandum of the transfer, is in writing and signed by the owner of the
rights conveyed or such owner’s

.
TRANSFER OF OWNERSHIP
(ASSIGNMENT):
Recordation vs Registration
 Recordation is the process of recording transfers of
copyright ownership
 Registration is the process for recording claims of
copyright ownership

. TRANSFER OF OWNERSHIP (ASSIGNMENT):
Priority of Transfer
 The first transfer takes priority over any subsequent transfers if it is
recorded first.
 If a subsequent transfer is recorded first, the first transfer will still take
priority over the subsequent transfer if the first transfer is recorded
within one month after it is made (or two months if the transfer was
made outside of the United States).

. TERMINATION OF TRANSFER:
WHY? Congress said that some sort of second bite at the apple
was needed because of the unequal bargaining power of
authors, cause mainly by the difficulty in valuing a © work prior
to exploitation.

Under 1909 Act, the renewal served the purpose of protecting
the author from bad deals. However, the way around this was
for transferees to require authors to transfer the renewal period
too!
Under 1976 Act, the Termination right cannot be transferred
by the author.

17 USC 203 governs terminations of transfers made in and after
1978.
17 USC 304 governs terminations of transfers made before
1978.
The most important date is the date when a transfer of rights is
made.
Does NOT apply to Works Made for Hire

Termination of Transfer may be made during the five-year period
beginning at the end of 35 years from publication (or 40 years from the
transfer date, whichever occurs earlier).
Notice of Termination of Transfer must state the intended termination date
and be provided to the transferee at least two years but no more than and
ten years before the termination date.

Mbu 2520 spring 2018 chapter 4

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