Kenneth D. Crews

Professor of Law and of
Library and Information Science
Director, Copyright Management Center
Indiana University-Purdue University at Indianapolis
530 West New York Street
Indianapolis, Indiana 46202-3225
(317) 274-4400
http://www.copyright.iupui.edu

Revised: December 26, 2002

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Who is the Copyright Owner?

How Do I Become a Copyright Owner?

Each member of the Indiana University community-indeed, probably each citizen and resident of the United States-is the creator and owner of copyright protected works. Copyright law in the United States is today extremely generous toward the creators and owners of new works. Legal copyright protection vests immediately and automatically upon the creation of an "original work of authorship" that is "fixed in any tangible medium of expression." An "original work" needs to have a minimal amount of creativity. For example, alphabetical listings in the phone book are not original, but advertising layouts, photographs, software, and many other works are likely "original." To be "fixed in a tangible medium of expression" is defined as the work being sufficiently permanent or stable to allow it to be perceived, reproduced, or otherwise communicated. For example, scribbles on paper or documents saved to disk are clearly "fixed."

As a result, each one of us creates new protected works when we write journal articles, produce videotapes, create works of art, or write computer software. In fact, under today's law, copyright also applies to notes that we dash off at meetings, letters home to family, and photographs that we take on vacation.

What is a Work-Made-For-Hire?

Some works that we create will not belong to us. For example, some works created on the job may belong to our employer under the "work-made-for-hire" doctrine. If the work is a "work-made-for-hire," then all rights in that work belong to the employer.

The most common type of work-made-for-hire is a work prepared by an employee within the scope of his or her employment. Some factors to look at to determine whether an employee is acting within the scope of employment when creating a work are: Control over the work, ownership of the tools used, location of the work, benefits, and tax treatment of the compensation earned.

Another type of work that may be deemed a work-made-for-hire is a work prepared by an independent contractor. The same types of factors used to determine an employee/employer relationship are used to determine independent contractor status. Once the author is found to be an independent contractor, the work may still be deemed a work-made-for-hire only if it is specially ordered or commissioned and the parties expressly agree in a written instrument signed by both of them that the work shall be considered a work-made-for-hire. This rule appies only to certain types of works. Read the work-made-for-hire statutes for more information.

Most universities have policies in place to deal with the work-made-for-hire issue. The Copyright Management Center has prepared a Memorandum of Understanding, Summary and Overview Memo, and FAQs about the MOU which may be utilized to develop policies within each department. Some works created at IU should be managed in cooperation with the Office of Technology Transfer, particularly software and multimedia projects prepared for commercial markets.

For more information: Copy-Own - Online Resource to Copyright Ownership for Higher Education

Can I Transfer My Copyrights to Someone Else?

Copyrights may be transferred in part or in whole. If you want to retain most of your rights, but transfer the right to reproduce, for example, this may be done by any method you prefer, including the use of licensing. Remember, all transfers ust be in writing and signed by the transferor. In addition to the right to reproduce, you may also transfer the right to prepare derivatives of your work, the right to distribute copies, or the right to perform or display the work publicly. Of course, you may also transfer all of these rights if you choose. Copyrights may also be bequeathed by will or transferred as personal property by intestate succession.

Other copyrights may be subject to the terms of an agreement funding the research or the project. We might also own our copyrights, only to later give them away pursuant to a publication agreement. Nevertheless, each of us is the owner of copyrights to many newly created works, and this paper addresses some of the questions about securing and managing those copyrights.

Many publishers require the assignment of copyrights in publishing agreements. As a faculty author, you generally are responsible for deciding if transfer is appropriate. In reality, publishers usually do not need all rights. In fact, as the author you may need to explicitly retain certain rights to use your publication in future teaching and research. Be sure your contract addresses your specific needs.

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What Copyright Notice Should I Put on My Works?

Under current law, the formal copyright notice is no longer required to secure copyright protection. Nevertheless, use of the notice is still good practice for many practical reasons and for some possible legal benefits that may later arise. The Copyright Management Center recommends that you include the statutory and conventional copyright notice, consisting of three elements: the word "copyright" or the copyright symbol, the year, and the name of the copyright owner. A typical notice may appear as follows: "Copyright 2002, [your name]."

What About "All Rights Reserved"?

You no doubt will often see that simple statement added after the formal copyright notice on many works. It is a requirement that once had great importance for securing rights in some foreign countries pursuant to the Buenos Aires Convention of 1914. Most of those countries since have signed the Berne Convention, which provides for mutual copyright protection of works from many foreign countries, regardless of any copyright notice whatsoever on the work. Thus, the phrase "All Rights Reserved" may grant additional protection in only a few countries. If you are concerned, feel free to add it.

How Do I Register My Copyrights?

As with the formal copyright notice, copyright registration is also no longer required under current law. But it also provides some important practical and legal benefits. In particular, if you anticipate the need to rigorously enforce protection of the work, or if you plan to publish it, this office recommends registration of the work with the U.S. Copyright Office. You may obtain copyright forms and instructions by calling (202) 707-9100. The form is simple and the registration fee is modest. Also check the Copyright Registration page at the U.S. Copyright Office for helpful insights and instructions.

How Do I Grant Permission to Others?

Third parties desiring to use someone else's copyrighted work beyond fair use or other rights allowed under the law must contact the copyright owner for permission. That copyright owner may be you. In order to ease the ability of your users to find you and to secure the desired permission, we recommend that you add a statement following the formal copyright notice, such as: "For information about this work, please contact ________________." You may add a personal name, department name, address, telephone number, or any other information helpful to your users. As the copyright owner you have the privilege of granting or denying the intended use. You may also put reasonable restrictions on the use, and you may charge an appropriate fee. Granting or denying permission or charging any fee is largely within your discretion. The Copyright Management Center urges that generally you make your scholarly works available to others with few impediments, if any. If you are marketing works that belong to Indiana University, you should contact the Advanced Research & Technology Institute.

Can I Use a Statement on the Work Granting Permission?

Yes, you can, as long as you hold the rights. Many of our scholarly copyrighted works will not likely become the object of aggressive protectionist efforts and may not be the appropriate works for securing royalty fees. Instead, we will likely encourage users to reproduce and to share some of our creative works. Nevertheless, they are still protected under copyright law, and we recommend that you maintain that protection and not put works in the public domain. Copyright allows protection of your original expression, and it also allows you to protect the integrity of your work and possibly your credit for having produced it. You might consider placing on your work a statement clearly granting permission for certain uses (see the statement at the end of this paper). You should evaluate carefully the language you use in such a grant, and consider whether or not it is appropriate for the particular work. The scope and details of such a provision are not set forth in any law, and you should feel free to alter them as appropriate for your needs.

Can I Put a Statement on the Work Restricting Uses?

You may state restrictions on further copying or other activities, but they may or may not be enforceable depending on a variety of complex factors and unresolved legal principles. When sending a manuscript to a publisher or editor, you might state on the cover page that it is for "editorial review only" and that "readers should contact the author before copying or quoting from" the manuscript. You should also feel free to reference any license agreements or other contracts that may be relevant or applicable to the work.

Do I Have Rights to My Published Works?

Your right to exercise any control or to make any use of your published works will generally depend upon the terms of your agreement with the publisher. Some publishers, including scholarly journal publishers, ask only for a first right of publication. Other publishers commonly insist on an assignment of the copyright. If your agreement allows you to retain the copyright, you may still have the authority to control many uses of the work. On the other hand, if you assign the copyright to the publisher, you generally have given up your rights to manage the work. If a third-party user comes to you for permission to use the work, you may no longer have the authority to grant that permission. In fact, if you want to use your own article as part of a later publication, or simply to copy it for a class or conference, you may also have given up that right as well. You should consider carefully the scope of rights that you are assigning to the publisher when you sign your publication agreements. Reading and understanding the agreement may be the most important part of the publication process, and it may directly define your future scholarly efforts. Do not hesitate to anticipate your future needs and to negotiate a contract that best serves your interests.

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Copyright 2002, The Trustees of Indiana University.
For information about this work, please contact the Copyright Management Center at the address set forth above. Permission is hereby granted to reproduce and distribute copies of this work for nonprofit educational purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act. Before making any distribution of this work, please contact the Copyright Management Center to ascertain whether you have the current version.

Copyright © 2002-2006 Indiana University