BACK TO BASICS (OF COPYRIGHT) Part 2

In my last article I reviewed several initial basics of United States (U.S.) copyright law, so we now move to equally important topics. Copyright ownership in a work is clearly important, i.e., ownership of the rights designated in my previous article.  As an initial matter it is important to understand the difference between an author and a copyright owner.  Under U.S. copyright law, the word ‘author’ is a term of art which generally designates the individual who creates the work.  In many instances the author and the owner of the right are one and the same, because the general rule is that the person who actually created the work, the author, owns these rights.

However, there are at least two gaping exceptions to this general result. The first is that anyone who creates a work within the scope of his or her employment is not the owner or author of this work.  Instead, the employer is considered both and this result automatically exists without a contract or other agreement.

The second exception occurs whenever a person engages an independent third party to create a work on a per project basis.  Whenever this person engages this third party there should be a contract transferring that party’s copyright in the work to the engaging person. Otherwise, the engaging person pays for the services but has no rights to use, modify, sell or even duplicate the work! This contract also requires a payment from the retaining person for the transfer, and this payment is separate and apart from the services fee.

If the subject matter by the third party falls within one of several statutory categories for this purpose, then with the appropriate contract and payment, the retaining party becomes the author as well as copyright owner.  If the retaining person becomes author, then the original owners are not entitled to return of the copyright which they transferred to that retaining person; this possible return is known as a reversion of rights. As a famous example, the reversion of rights was extensively litigated by the original authors and heirs of the comic book characters SUPERMAN® and SUPERBOY®.  

Because copyright is considered property, legatees and heirs may obtain these rights through a deceased’s estate. Someone may also obtain a transfer of copyright ownership from a person or entity; the transfer of rights from a third party to the engaging person is an example in this category. For the rights transfer to be exclusive the contract is written, but for a non-exclusive transfer a written agreement is not necessary. In either instance, the right of reversion could be exercised by the original copyright owner if the current owner does not also qualify as an author.

On or after January 1, 1978, registered and non-registered copyright in a particular work exists for the author’s natural life plus seventy years. For works under employment or a retainer agreement copyright endures 95 years from publication[1] or 120 years from creation, whichever is shorter.[2]  

© 2022 Adrienne B. Naumann, Esq. Ms. Naumann does not endorse or sponsor the advertisements at adriennebnaumann@wordpress.com.


[1] There is a special definition for ‘publication’ in copyright law which is much narrower than that of normal English language discourse.

[2] For works created prior to January 1, 1978 as well as non -U.S. works the rules for copyright duration prove significantly more complicated.  Anonymous and pseudonymous works have the same duration as works within the scope of employment.

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