Programmer 7500/MAX_PROGRAMMERS.iso/CLIPPER/MISC/CPYRIGHT.ZIP/COPYRIT3.TXT

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Copyright 1991 by S. Kitterman Jr. and the Las Vegas PC Users Group,
316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.
This file was originally printed in the December 1991 issue of The Bytes
of Las Vegas, a publication of the Las Vegas PC Users Group, and may be
reprinted only by nonprofit organizations.
Please give proper credit to the author and The Bytes of Las Vegas.
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Copyrights and Computer Software: Part III

by Sam Kitterman, Jr., LVPCUG

     [The purpose of these articles is to give general information
regarding copyrights and how they pertain to protection of
software.  It is not intended to constitute legal advice nor should
it be relief upon to address a particular situation since the tone
of these articles is general in nature.]

     As discussed in last month's article, the Copyright Act
requires a protectible work to have been "original" to its author.
Yet, once a work has been created and a copyright registration is
being sought for that work, who owns the copyright?  That is the
subject of this month's article.
     The Copyright Act distinguishes between three types of
ownership of a copyrighted work, i.e.,

          (a)  Where the author is the sole creator of the work
               and the work was NOT a work "made for hire", then
               the author is also the owner of the work;

          (b)  Where there were joint authors of the work and
               they had agreed that the work would be jointly-
               owned, then the joint authors are the joint
               owners of the work; and,

          (c)  Where the author(s) were creating the work as a
               work "made for hire", then the author's employer
               will become the owner of the work.
     Perhaps the easiest of these situations to understand is (a),
i.e., single author is also the owner of the copyright in the work
if he or she created the work for themselves, not for another
party.  201(a) of the Copyright Act states this as follows:

               Copyright in a work protected under this title
               vests initially in the author or authors of
               the work.  The authors of a joint work are
               coowners of copyright in the work.
     The second of these situations to understand is that of joint
authorship - joint ownership.  Although the above subsection seems
to be clear, the Copyright Act requires more than parties to have
been joint authors in order for joint ownership of the copyright to
be found.
     101 of the Copyright Act (Definitions) states that a joint
work

               is 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.
As noted in the House Report on the 1976 Copyright Act, the
"touchstone" of a joint work

               is the intention, at the time the writing was
               done, that the parts be absorbed or combined
               into an integrated unit, although the parts
               themselves may be either 'inseparable' (as
               [in] the case of a novel or painting or
               'interdependent' (as in the case of a
               motion picture, opera, or the words and music
               of a song.  The test of joint authorship under
               the 1976 Act...[is] 'to constitute joint
               authorship, there must be a common design.'
     In summary, a "joint work" will be found where there are
multiple authors, they had agreed that the "Work" of their labors
would be one Work, and that they had further agreed that they
should be treated as joint authors/owners of that Work.
     The third of these situations of ownership is that of a "work
made for hire".  Once again, the Copyright Act itself gives us
a general framework for such works.  As defined by the Act, a "work
made for hire" is---

               (1)  A work prepared by an employee within the scope
               of his or her employment; or

               (2)  a work specially ordered or commissioned for
               use as a contribution to a collective work, as a
               part of a motion picture or other audiovisual work,
               as a translation, as a supplementary work, as a
               compilation, as an instructional text, as a test, as
               answer material for a test, or as an atlas, if the
               parties expressly agree in a written instrument
               signed by them that the work shall be considered a
               work made for hire.  For the purpose of the
               foregoing sentence, a "supplementary work" is a work
               prepared for publication as a secondary adjunct to
               a work by another author for the purpose of
               introducing, concluding, illustrating, explaining,
               revising, commenting upon, or assisting in the use
               of the other work, such as forewords, afterwords,
               pictorial illustrations, maps, charts, tables,
               editorial notes, musical arrangements, answer
               material for tests, bibliographies, appendixes, and
               indexes, and an "instructional test" is a literary,
               pictorial, or graphic work prepared for publication
               and with the purpose of use in systematic
               instructional activities.
17 U.S.C. 101.
     Simplified, a "work made for hire" will be found either where
the work was done as a result of, and related to, your employment
or under those specific categories set forth above in "2" WHERE the
parties had specifically agreed in writing that such work would
constitute a "work made for hire".
     Yet, what is employment? For example, what if you are an
independent contractor and there is no agreement between you and
the party who hired you concerning ownership of the copyright?  Who
owns the copyright in the Work?
     This issue was addressed by the United States Supreme Court in
the case of Community for Creative Non-Violence v. Reid, 490
U.S.___, 109 S.Ct. 2166 (1989).  In that case a non-profit
organization hired a sculpter to do a sculpture concerning the
plight of the homeless.  There was no language in the contract
concerning who would own the copyright in the Work.  After the work
had been completed, the parties began arguing about control of the
piece and subsequently sued each other.  Although the local court
ruled the organization owned the copyright because it was a "work
made for hire", the Supreme Court upheld the reversal of that
decision, a decision holding that the independent contractor owned
the copyright in the work.
     In so ruling, the Supreme Court focused on three issues:

          (1)  The nature of the employment relationship between
               the organization and the sculpter, i.e.,
               what is called "master-servant" in the law;

          (2)  Whether the organization meaninfully exercised
               any control over the sculpter's work; and,

          (3)  Whether the organization treated the sculpter as
               an employee for purposes of benefits and taxes.
     Although much of that decision is beyond the scope of this
article, what must be remembered when you are doing work for
someone else is the following:
          (a)  Are you an employee?
          (b)  Is the work you are doing something that falls
               within the scope of your normal duties for your
               employer?
          (c)  Does your employer supervise the work?

     If the answers to all three of the above questions are yes,
     then the work is most likely a work made for hire and your
     employer, not you, owns rights in that work.

          (a)  Are you an independent contractor?
          (b)  Do you have a written agreement wherein ownership
               of the "Work" is given to your employer?

     If the answers to the above two questions are yes, then your
     employer will be the owner of the work.

          (a)  Are you an independent contractor and there is no
               written agreement concerning copyright ownership of
               the Work?
          (b)  How much control does your employer exercise over
               your work?
          (c)  How are you treated by your employer concerning
               benefits and taxes?

          Again, if you are an independent contractor, acting
          mostly on your own with some input from your employer,
          and you receive no benefits/tax considerations from
          the employer, then you will most likely be the owner
          of the copyright in the work, not your employer.

               On the other hand, if your employer takes a very
          active role in supervising your work, exercises active
          control over your operations, and treats you as an
          inside employee for purposes of benefits and taxes, then
          your employer, not you, will most likely own the
          copyright in the work.

     This may seem to be complicated.  It is!  Yet, the impact of
determining who owns the copyright in a work can be great.  For
example, if you own a graphics arts studio and are hired to create
a coin design, the question of ownership of the copyright in that
coin design must be considered.  Indeed, it can be a means of
ensuring that you, as an independent contractor, are paid for the
work you do for others.  So remember, if you're going to create a
work, make sure you know who is going to own the copyright in it!

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Copyright 1991--S. Kitterman Jr.

[Sam Kitterman, a member of the Las Vegas PC Users Group is an attorney
with the firm of Quirk, Tratos & Rothel; he specializes in issues
related to computer software. This is the third of a series
of articles Sam is writing for The Bytes of Las Vegas.
It was originally published in the December 1991 issue of The Bytes of Las
Vegas, the official newsletter of the Las Vegas PC Users Group.]