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202 lines
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Copyright 1991 by S. Kitterman Jr. and the Las Vegas PC Users Group,
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316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.
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This file was originally printed in the December 1991 issue of The Bytes
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of Las Vegas, a publication of the Las Vegas PC Users Group, and may be
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reprinted only by nonprofit organizations.
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Please give proper credit to the author and The Bytes of Las Vegas.
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Copyrights and Computer Software: Part III
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by Sam Kitterman, Jr., LVPCUG
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[The purpose of these articles is to give general information
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regarding copyrights and how they pertain to protection of
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software. It is not intended to constitute legal advice nor should
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it be relief upon to address a particular situation since the tone
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of these articles is general in nature.]
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As discussed in last month's article, the Copyright Act
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requires a protectible work to have been "original" to its author.
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Yet, once a work has been created and a copyright registration is
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being sought for that work, who owns the copyright? That is the
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subject of this month's article.
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The Copyright Act distinguishes between three types of
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ownership of a copyrighted work, i.e.,
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(a) Where the author is the sole creator of the work
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and the work was NOT a work "made for hire", then
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the author is also the owner of the work;
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(b) Where there were joint authors of the work and
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they had agreed that the work would be jointly-
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owned, then the joint authors are the joint
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owners of the work; and,
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(c) Where the author(s) were creating the work as a
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work "made for hire", then the author's employer
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will become the owner of the work.
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Perhaps the easiest of these situations to understand is (a),
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i.e., single author is also the owner of the copyright in the work
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if he or she created the work for themselves, not for another
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party. 201(a) of the Copyright Act states this as follows:
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Copyright in a work protected under this title
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vests initially in the author or authors of
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the work. The authors of a joint work are
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coowners of copyright in the work.
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The second of these situations to understand is that of joint
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authorship - joint ownership. Although the above subsection seems
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to be clear, the Copyright Act requires more than parties to have
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been joint authors in order for joint ownership of the copyright to
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be found.
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101 of the Copyright Act (Definitions) states that a joint
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work
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is a work prepared by two or more authors
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with the intention that their contributions
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be merged into inseparable or interdependent
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parts of a unitary whole.
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As noted in the House Report on the 1976 Copyright Act, the
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"touchstone" of a joint work
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is the intention, at the time the writing was
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done, that the parts be absorbed or combined
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into an integrated unit, although the parts
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themselves may be either 'inseparable' (as
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[in] the case of a novel or painting or
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'interdependent' (as in the case of a
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motion picture, opera, or the words and music
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of a song. The test of joint authorship under
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the 1976 Act...[is] 'to constitute joint
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authorship, there must be a common design.'
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In summary, a "joint work" will be found where there are
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multiple authors, they had agreed that the "Work" of their labors
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would be one Work, and that they had further agreed that they
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should be treated as joint authors/owners of that Work.
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The third of these situations of ownership is that of a "work
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made for hire". Once again, the Copyright Act itself gives us
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a general framework for such works. As defined by the Act, a "work
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made for hire" is---
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(1) A work prepared by an employee within the scope
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of his or her employment; or
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(2) a work specially ordered or commissioned for
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use as a contribution to a collective work, as a
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part of a motion picture or other audiovisual work,
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as a translation, as a supplementary work, as a
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compilation, as an instructional text, as a test, as
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answer material for a test, or as an atlas, if the
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parties expressly agree in a written instrument
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signed by them that the work shall be considered a
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work made for hire. For the purpose of the
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foregoing sentence, a "supplementary work" is a work
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prepared for publication as a secondary adjunct to
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a work by another author for the purpose of
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introducing, concluding, illustrating, explaining,
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revising, commenting upon, or assisting in the use
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of the other work, such as forewords, afterwords,
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pictorial illustrations, maps, charts, tables,
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editorial notes, musical arrangements, answer
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material for tests, bibliographies, appendixes, and
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indexes, and an "instructional test" is a literary,
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pictorial, or graphic work prepared for publication
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and with the purpose of use in systematic
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instructional activities.
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17 U.S.C. 101.
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Simplified, a "work made for hire" will be found either where
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the work was done as a result of, and related to, your employment
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or under those specific categories set forth above in "2" WHERE the
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parties had specifically agreed in writing that such work would
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constitute a "work made for hire".
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Yet, what is employment? For example, what if you are an
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independent contractor and there is no agreement between you and
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the party who hired you concerning ownership of the copyright? Who
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owns the copyright in the Work?
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This issue was addressed by the United States Supreme Court in
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the case of Community for Creative Non-Violence v. Reid, 490
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U.S.___, 109 S.Ct. 2166 (1989). In that case a non-profit
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organization hired a sculpter to do a sculpture concerning the
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plight of the homeless. There was no language in the contract
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concerning who would own the copyright in the Work. After the work
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had been completed, the parties began arguing about control of the
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piece and subsequently sued each other. Although the local court
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ruled the organization owned the copyright because it was a "work
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made for hire", the Supreme Court upheld the reversal of that
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decision, a decision holding that the independent contractor owned
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the copyright in the work.
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In so ruling, the Supreme Court focused on three issues:
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(1) The nature of the employment relationship between
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the organization and the sculpter, i.e.,
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what is called "master-servant" in the law;
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(2) Whether the organization meaninfully exercised
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any control over the sculpter's work; and,
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(3) Whether the organization treated the sculpter as
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an employee for purposes of benefits and taxes.
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Although much of that decision is beyond the scope of this
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article, what must be remembered when you are doing work for
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someone else is the following:
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(a) Are you an employee?
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(b) Is the work you are doing something that falls
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within the scope of your normal duties for your
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employer?
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(c) Does your employer supervise the work?
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If the answers to all three of the above questions are yes,
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then the work is most likely a work made for hire and your
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employer, not you, owns rights in that work.
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(a) Are you an independent contractor?
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(b) Do you have a written agreement wherein ownership
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of the "Work" is given to your employer?
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If the answers to the above two questions are yes, then your
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employer will be the owner of the work.
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(a) Are you an independent contractor and there is no
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written agreement concerning copyright ownership of
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the Work?
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(b) How much control does your employer exercise over
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your work?
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(c) How are you treated by your employer concerning
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benefits and taxes?
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Again, if you are an independent contractor, acting
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mostly on your own with some input from your employer,
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and you receive no benefits/tax considerations from
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the employer, then you will most likely be the owner
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of the copyright in the work, not your employer.
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On the other hand, if your employer takes a very
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active role in supervising your work, exercises active
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control over your operations, and treats you as an
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inside employee for purposes of benefits and taxes, then
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your employer, not you, will most likely own the
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copyright in the work.
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This may seem to be complicated. It is! Yet, the impact of
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determining who owns the copyright in a work can be great. For
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example, if you own a graphics arts studio and are hired to create
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a coin design, the question of ownership of the copyright in that
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coin design must be considered. Indeed, it can be a means of
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ensuring that you, as an independent contractor, are paid for the
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work you do for others. So remember, if you're going to create a
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work, make sure you know who is going to own the copyright in it!
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----------------------------------
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Copyright 1991--S. Kitterman Jr.
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[Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney
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with the firm of Quirk, Tratos & Rothel; he specializes in issues
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related to computer software. This is the third of a series
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of articles Sam is writing for The Bytes of Las Vegas.
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It was originally published in the December 1991 issue of The Bytes of Las
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Vegas, the official newsletter of the Las Vegas PC Users Group.]
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