Part 4: Whose Work Is It Anyway? Copyright Ownership
So now that you understand what materials can have copyright protection you need to determine whose owns the “work”. There are two forms of ownership; sole authorship and joint authorship.
Sole Authorship exists when one person fixes an idea in a tangible medium, such as a book, painting, song, or software program. It does not matter if the idea was originally theirs or not. The important step in authorship is fixation, not imagination. For example, if you come up with a great idea for a short story in your head and then do nothing about it, then you have no legal rights to that story. However, if you are wise enough to fix the idea in a tangible medium such as writing it on paper, a saved file on a computer or an audio recording in analog or digital format then you may claim sole authorship and any subsequent copying or derivative works would be actionable for infringement of your copyright.
Joint Authorship exists when several people work together to create a single work. A joint work may also be created under the Copyright Act. A joint work is defined by the Copyright Act as:
[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.
Under this definition, both authors must intend that their contributions be combined into a single work. This intention must exist at the time the contribution is created and cannot come at the end of the process. It is not necessary, however, that the contributions be equal in effort or value. Nor is it necessary that the joint authors work in the same physical area or at the same time. The only requirement is that both authors have the intention that the works are to be “merged into inseparable or interdependent parts of a unitary whole.”
Collaborative works are not automatically considered joint works. There may have been no intent to create a joint authorship in a work, but rather each author had the intent of retaining ownership in their contribution. This is a perfectly viable and legal situation. This means that no one author can give permission to a third party to use the work and no one party may use the work without getting permission from the other authors for their contributions. As you can imagine, collaborative works that are not intended to be joint works are fraught with potential law suits and may turn into an endless battle of “he said, she said.” There may even be disputes as to whether there was the intention to make a jointly authored work or retain separate rights. It can be a costly mess in terms of time, money and professional relationships.
Our next post will continue the series on copyright. For more details or if you uncertain about what is best, contact a legal professional. For a free consult please send us an email.
Or you can purchase an eBook written by my colleague Sarah Feingold: http://www.sarahfeingold.com/book/index.html.
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