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JOM Material Matters Articles in Full-Text Format: August 2005
Exploring traditional, innovative, and revolutionary issues in the minerals, metals, and materials fields.
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LETTER TO EDITOR
Who Owns the Copyright in an Article or Other Contribution to a Collective Work?Arnold B. Silverman
If you write a technical article, submit it to a respected professional journal, and have it accepted for publication, who owns the copyright in the published article? In most instances, the author is focusing primarily on timely and accurate publication of the article in the journal and does not consider this issue. In many instances, the journal also either does not deal with this issue or does so belatedly. In other cases, the journal submits to the author an assignment form which, when executed, will assign all worldwide right, title, and interest in the article to the journal. It is important for an author to be aware of his or her rights.
The author owns a copyright in a work, such as an article, which is reduced to a tangible mode of expression. This is generally the individual or individuals who create the article, unless it is a work for hire. A work for hire is a work prepared by an employee, full or part-time, within the scope of his or her employment, or a work that is both specially ordered or commissioned and fits into one of the nine statutory categories. In addition, there must be a signed, written agreement stating that both parties desire the work to be considered a work for hire. If the work is a work for hire, the one engaging the individual is regarded as the author for copyright purposes. One of these enumerated categories is a contribution to a collective work.
Many people erroneously assume that an agreement signed by all parties indicating an intent that the work be a work for hire makes it so even if the creator is not an employee and the work does not fit within any of the nine statutory categories. Such is not the case, as individuals by private agreement cannot overrule a federal statute.
A threshold question, therefore, in determining ownership of the article would be to determine if it was specially ordered or commissioned for use as a contribution to a collective work and there was a writing indicating the intention that it be a work for hire. If so, upon completion, title would belong to the owner of the copyright in the collective work.
A collective work is defined in the statute as being a work such as a periodical issue, anthology, or encyclopedia in which a number of contributions constituting separate and independent works in themselves are assembled into a collective whole.
The copyright of each separate contribution to a collective work is distinct from the copyright in the collective whole. In the absence of an assignment transferring title to the owner of the copyright in the collective work or other agreement providing for greater rights, in general, the owner of the copyright in the collective work has only the privilege of reproducing and distributing the contribution as part of the collective work. Governing agreements which alter these rights must be drafted with great clarity and a full understanding of the copyright law. For example, litigation has resulted in print media publishers having to pay additional fees for use of works which they were licensed to publish in print when these works of freelance authors were placed on the internet.
It is important to understand that while there is great freedom to transfer ownership of a copyright, the statute states that the transfer is not valid unless a written instrument signed by the owner of the copyright effects such transfer. It is preferable to have such transfers notarized as such action creates a presumption of validity of the transfer.
The owner of a copyright is given certain exclusive rights. These include the exclusive right to reproduce the copyrighted work, the right to distribute copies of the work, the right to prepare derivative works and, as to certain types of works, the right to perform the copyrighted work publicly and to display the copyrighted work publicly. A derivative work is a work which is based upon one or more pre-existing works and, in general, carries over a sufficient amount of the original work to make it clear that it is a recast, transformed, or adapted version of the original work. These rights remain with the author unless something has occurred to change that status.
In view of the fact that a copyright has a very long term, it is important at an early stage to make sure that the ownership and license rights are given very careful consideration with all the options that are open to the author being evaluated.
In summary, it is of critical importance that an author at an early stage makes determinations regarding the desired allocation of rights in a work which will become published in a collective work. It is also essential in the case of ownership transfers and desirable in the case of other transfers to have a written document signed by the parties which clearly reflects their understanding.
Arnold B. Silverman is chair of the Intellectual Property department and a member of Eckert Seamans Cherin & Mellott, LLC in Pittsburgh, Pennsylvania.