Authorship in Copyright

A copyright is a form of protection provided by law to anyone who creates “original works of authorship.”  Essentially, a copyright protects literary, musical, dramatic, artistic and other qualifying creative works of the author.  Author, under the U.S. Copyright Law, is either the person who actually creates a copyrightable work or, if the copyrightable work is created within the scope of employment, the employer of the person who actually creates the copyrightable work.  The author of a work is entitled to copyright in the work if the work is original and is fixed.  The work can even be a compilation of existing data.  Compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.  The term “compilation” includes collective works.  These works are also entitled to copyright protection.

The copyright protects the original works of authorship by protecting the form of expression rather than the subject matter of the work.  For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.  Copyright therefore protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

  1. literary works;
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works

Under the U.S. Copyright Law, exclusive rights are granted to an author or owner of a copyrightable work falling under any of these categories.  The exclusive rights provided by copyright are completely divisible.  Copyright in a work vests initially in the author or authors of the work.  However, the author may assign some or all of his or her rights to another, e.g., to a publisher, if the work has appeared in a formal publication, who then becomes the owner of the rights assigned.  Therefore, the author or owner of a copyright, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner or author of that particular right.

When just one author is involved in the creation of a work, s/he can rightfully claim copyright. 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.  If the work was a collaborative effort between several authors, each author becomes a co-owner of the copyright.  The concept of co-ownership indicates that each author has the rights to the work.  All owners would have to agree to sell their rights for someone to have exclusive ownership of the work.  For this reason, in most cases of co-ownership of work, an agreement is drawn up beforehand as to who will own the copyright.  The term of copyright in a co-authorship situation is 50 years after the last surviving author’s death.

If copies of the work are distributed to the public for sale, that first date of sale is called the publication date.  The term of copyright protection in such cases is calculated as 75 years from the publication date or 100 years from the creation date; whichever is shorter.

The protection afforded by copyright was further clarified by the Copyright Act of 1976.  A copyright owner now has the exclusive right to reproduce the work, prepare spin-off works based on the copyrighted work, and to sell, perform and/or display the copyrighted work in public.

The author of a derivative work is also entitled to copyright protection.  Derivative work refers to a work that is based on, or modifies, one or more preexisting works.  A copyright owner has the exclusive right to prepare or authorize the preparation of a derivative work based on the copyrighted work.  If a derivative work, considered as a whole, represents an original work of authorship, it may be separately copyrightable.  However in such cases, the copyright covers only original portions of the derivative work.

The author of a copyright can also hand over his/her rights over the work by issuing a license to a third party.  A license is a contractual agreement from a copyright owner or the owner’s authorized agent, such as a third party vendor, allowing another party to exercise one or more of the exclusive rights provided the copyright owner under the Copyright Law.

Copyright protection arises automatically once an original work of authorship is fixed in a tangible medium of expression, now known or later developed; e.g., written, filmed, recorded. It does not require that a copyright notice be placed on the work, that the work be published, or that the work be deposited or registered with the Copyright Office or any other body.

The author of a copyrighted work may be a person or an institution. Typically, the author of a work owns the copyright in the work.  However, under the U.S. Copyright Law, for a work made for hire, that is a work prepared by an employee within the scope of employment or a specially ordered or commissioned work, the employer or other person for whom the work was prepared is considered the author.


Inside Authorship in Copyright