Chapter 3 OWNERSHIP AND TRANSFER OF COPYRIGHT OUTLINE Page A. Copyright ownership 1. Initial ownership a. In general_. b. "Joint work" c. Co-ownership of copyright...... 2. Works made for hire_ _ _ 3. Contributions to collective works_ 4. Transfer of ownership.. b. Divisibility of copyright. Chapter 3 OWNERSHIP AND TRANSFER OF COPYRIGHT A. COPYRIGHT OWNERSHIP 1. INITIAL OWNERSHIP a. In General Subsection (a) of section 201 of the bill states the fundamental principles, long established under the common law, that copyright ownership originates in the author, and that two or more authors of a "joint work" are co-owners of the copyright. b. "Joint Work" The term "joint work" is defined in section 101 of the bill as "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." This definition carries out the recommendation of the 1961 Report, which took the position that under the present law the courts have broadened the concept of joint authorship beyond its reasonable limits. Although some sentiment has been expressed for defining "joint work" simply as "a work prepared by two or more authors," we believe that it would be a serious mistake to create a tenancy-in-common situation, with its important legal consequences, from the mere bringing together of two or more authors' works. Under the definition a work would not be "joint" unless its authors collaborated among themselves or unless each of the authors knew, at the time the work was being written, that his contribution would be integrated as an "inseparable" or "interdependent” part of a "unitary whole." Common examples of "inseparable" parts would be the contributions of co-authors to a short story or novel, while the words and music that comprise a song, or the many contributions that go to make up a motion picture, would be examples of "interdependent parts." The definition of "joint work" should be compared with that of "collective work" which, under section 101, involves the assembly of "a number of contributions, constituting separate and independent works in themselves *** into a collective whole." 65 c. Co-ownership of Copyright The only reference to co-ownership in the bill is in subsection (a) of section 201, in the context of initial ownership of joint works. However, as the 1961 Report pointed out, co-ownership may also result from a transfer of copyright or from the inheritance of a copyright by two or more heirs. The bill, like the present statute, is silent as to the rights of co-owners to use and authorize the use of a work, thus leaving in effect the rulings of the courts which generally treat co-owners of copyright as tenants-in-common. The intention, as recommended by the Report, is to leave undisturbed the decisions holding "that any one co-owner may use or license the use of the work, but that he must account for profits to the other co-owners." 2. WORKS MADE FOR HIRE The problem of "works made for hire"-their scope, definition, and treatment-has been a difficult and hotly contested issue in the development of the bill. Whether or not a work is considered "made for hire" has a number of important consequences, particularly in relation to duration of copyright, ownership, and the right to terminate transfers under section 203. The definition now in section 101 represents a carefully worked out compromise aimed at balancing legitimate interests on both sides. The 1961 Report recommended, in the case of a work made for hire, that the present rule vesting all rights initially in the employer be retained, but without identifying the employer as the "author." In the course of drafting, however, it became clear that there are great advantages of convenience and simplicity in assimilating employers to "authors" for all purposes. It was also pointed out that failure to identify the employer as "author" might have unintended consequences as, for example, with respect to the protection of motion. pictures in foreign countries. Thus, since the advantages of making the employer an "author" for purposes of the statute outweigh any conceptual difficulties involved in doing so, subsection (b) of section 201 provides that, "[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title ***." The 1961 Report noted that the courts "have not generally regarded commissioned works as works 'made for hire,'" and the preliminary draft in 1963 defined a work "made for hire" as "a work prepared by an employee within the scope of the duties of his employment, but not including a work made on special order or commission." The last phrase of this definition was strongly opposed by book publishers, among others, on the ground that there are a great many works which |