§ 201. — Ownership of copyright.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC201]
TITLE 17--COPYRIGHTS
CHAPTER 2--COPYRIGHT OWNERSHIP AND TRANSFER
Sec. 201. Ownership of copyright
(a) Initial Ownership.--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.
(b) Works Made for Hire.--In 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, and, unless the parties have
expressly agreed otherwise in a written instrument signed by them, owns
all of the rights comprised in the copyright.
(c) Contributions to Collective Works.--Copyright in each separate
contribution to a collective work is distinct from copyright in the
collective work as a whole, and vests initially in the author of the
contribution. In the absence of an express transfer of the copyright or
of any rights under it, the owner of copyright in the collective work is
presumed to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular collective
work, any revision of that collective work, and any later collective
work in the same series.
(d) Transfer of Ownership.--
(1) The ownership of a copyright may be transferred in whole or
in part by any means of conveyance or by operation of law, and may
be bequeathed by will or pass as personal property by the applicable
laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright,
including any subdivision of any of the rights specified by section
106, may be transferred as provided by clause (1) and owned
separately. The owner of any particular exclusive right is entitled,
to the extent of that right, to all of the protection and remedies
accorded to the copyright owner by this title.
(e) Involuntary Transfer.--When an individual author's ownership of
a copyright, or of any of the exclusive rights under a copyright, has
not previously been transferred voluntarily by that individual author,
no action by any governmental body or other official or organization
purporting to seize, expropriate, transfer, or exercise rights of
ownership with respect to the copyright, or any of the exclusive rights
under a copyright, shall be given effect under this title, except as
provided under title 11.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2568; Pub.
L. 95-598, title III, Sec. 313, Nov. 6, 1978, 92 Stat. 2676.)
Historical and Revision Notes
house report no. 94-1476
Initial Ownership. Two basic and well-established principles of
copyright law are restated in section 201(a): that the source of
copyright ownership is the author of the work, and that, in the case of
a ``joint work,'' the coauthors of the work are likewise coowners of the
copyright. Under the definition of section 101, a work is ``joint'' if
the authors collaborated with each other, or if each of the authors
prepared his or her contribution with the knowledge and intention that
it would be merged with the contributions of other authors as
``inseparable or interdependent parts of a unitary whole.'' The
touchstone here is the intention, at the time the writing is done, that
the parts be absorbed or combined into an integrated unit, although the
parts themselves may be either ``inseparable'' (as 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 definition of ``joint
work'' is to be contrasted with the definition of ``collective work,''
also in section 101, in which the elements of merger and unity are
lacking; there the key elements are assemblage or gathering of
``separate and independent works * * * into a collective whole.''
The definition of ``joint works'' has prompted some concern lest it
be construed as converting the authors of previously written works, such
as plays, novels, and music, into coauthors of a motion picture in which
their work is incorporated. It is true that a motion picture would
normally be a joint rather than a collective work with respect to those
authors who actually work on the film, although their usual status as
employees for hire would keep the question of coownership from coming
up. On the other hand, although a novelist, playwright, or songwriter
may write a work with the hope or expectation that it will be used in a
motion picture, this is clearly a case of separate or independent
authorship rather than one where the basic intention behind the writing
of the work was for motion picture use. In this case, the motion picture
is a derivative work within the definition of that term, and section 103
makes plain that copyright in a derivative work is independent of, and
does not enlarge the scope of rights in, any preexisting material
incorporated in it. There is thus no need to spell this conclusion out
in the definition of ``joint work.''
There is also no need for a specific statutory provision concerning
the rights and duties of the coowners of a work; court-made law on this
point is left undisturbed. Under the bill, as under the present law,
coowners of a copyright would be treated generally as tenants in common,
with each coowner having an independent right to use or license the use
of a work, subject to a duty of accounting to the other coowners for any
profits.
Works Made for Hire. Section 201(b) of the bill adopts one of the
basic principles of the present law: that in the case of works made for
hire the employer is considered the author of the work, and is regarded
as the initial owner of copyright unless there has been an agreement
otherwise. The subsection also requires that any agreement under which
the employee is to own rights be in writing and signed by the parties.
The work-made-for-hire provisions of this bill represent a carefully
balanced compromise, and as such they do not incorporate the amendments
proposed by screenwriters and composers for motion pictures. Their
proposal was for the recognition of something similar to the ``shop
right'' doctrine of patent law: with some exceptions, the employer would
acquire the right to use the employee's work to the extent needed for
purposes of his regular business, but the employee would retain all
other rights as long as he or she refrained from the authorizing of
competing uses. However, while this change might theoretically improve
the bargaining position of screenwriters and others as a group, the
practical benefits that individual authors would receive are highly
conjectural. The presumption that initial ownership rights vest in the
employer for hire is well established in American copyright law, and to
exchange that for the uncertainties of the shop right doctrine would not
only be of dubious value to employers and employees alike, but might
also reopen a number of other issues.
The status of works prepared on special order or commission was a
major issue in the development of the definition of ``works made for
hire'' in section 101, which has undergone extensive revision during the
legislative process. The basic problem is how to draw a statutory line
between those works written on special order or commission that should
be considered as ``works made for hire,'' and those that should not. The
definition now provided by the bill represents a compromise which, in
effect, spells out those specific categories of commissioned works that
can be considered ``works made for hire'' under certain circumstances.
Of these, one of the most important categories is that of
``instructional texts.'' This term is given its own definition in the
bill: ``a literary, pictorial, or graphic work prepared for publication
with the purpose of use in systematic instructional activities.'' The
concept is intended to include what might be loosely called ``textbook
material,'' whether or not in book form or prepared in the form of text
matter. The basic characteristic of ``instructional texts'' is the
purpose of their preparation for ``use in systematic instructional
activities,'' and they are to be distinguished from works prepared for
use by a general readership.
Contributions to Collective Works. Subsection (c) of section 201
deals with the troublesome problem of ownership of copyright in
contributions to collective works, and the relationship between
copyright ownership in a contribution and in the collective work in
which it appears. The first sentence establishes the basic principle
that copyright in the individual contribution and copyright in the
collective work as a whole are separate and distinct, and that the
author of the contribution is, as in every other case, the first owner
of copyright in it. Under the definitions in section 101, a ``collective
work'' is a species of ``compilation'' and, by its nature, must involve
the selection, assembly, and arrangement of ``a number of
contributions.'' Examples of ``collective works'' would ordinarily
include periodical issues, anthologies, symposia, and collections of the
discrete writings of the same authors, but not cases, such as a
composition consisting of words and music, a work published with
illustrations or front matter, or three one-act plays, where relatively
few separate elements have been brought together. Unlike the contents of
other types of ``compilations,'' each of the contributions incorporated
in a ``collective work'' must itself constitute a ``separate and
independent'' work, therefore ruling out compilations of information or
other uncopyrightable material and works published with editorial
revisions or annotations. Moreover, as noted above, there is a basic
distinction between a ``joint work,'' where the separate elements merge
into a unified whole, and a ``collective work,'' where they remain
unintegrated and disparate.
The bill does nothing to change the rights of the owner of copyright
in a collective work under the present law. These exclusive rights
extend to the elements of compilation and editing that went into the
collective work as a whole, as well as the contributions that were
written for hire by employees of the owner of the collective work, and
those copyrighted contributions that have been transferred in writing to
the owner by their authors. However, one of the most significant aims of
the bill is to clarify and improve the present confused and frequently
unfair legal situation with respect to rights in contributions.
The second sentence of section 201(c), in conjunction with the
provisions of section 404 dealing with copyright notice, will preserve
the author's copyright in a contribution even if the contribution does
not bear a separate notice in the author's name, and without requiring
any unqualified transfer of rights to the owner of the collective work.
This is coupled with a presumption that, unless there has been an
express transfer of more, the owner of the collective work acquires,
``only the privilege of reproducing and distributing the contribution as
part of that particular collective work, any revision of that collective
work, and any later collective work in the same series.''
The basic presumption of section 201(c) is fully consistent with
present law and practice, and represents a fair balancing of equities.
At the same time, the last clause of the subsection, under which the
privilege of republishing the contribution under certain limited
circumstances would be presumed, is an essential counterpart of the
basic presumption. Under the language of this clause a publishing
company could reprint a contribution from one issue in a later issue of
its magazine, and could reprint an article from a 1980 edition of an
encyclopedia in a 1990 revision of it; the publisher could not revise
the contribution itself or include it in a new anthology or an entirely
different magazine or other collective work.
Transfer of Ownership. The principle of unlimited alienability of
copyright is stated in clause (1) of section 201(d). Under that
provision the ownership of a copyright, or of any part of it, may be
transferred by any means of conveyance or by operation of law, and is to
be treated as personal property upon the death of the owner. The term
``transfer of copyright ownership'' is defined in section 101 to cover
any ``conveyance, alienation, or hypothecation,'' including assignments,
mortgages, and exclusive licenses, but not including nonexclusive
licenses. Representatives of motion picture producers have argued that
foreclosures of copyright mortgages should not be left to varying State
laws, and that the statute should establish a Federal foreclosure
system. However, the benefits of such a system would be of very limited
application, and would not justify the complicated statutory and
procedural requirements that would have to be established.
Clause (2) of subsection (d) contains the first explicit statutory
recognition of the principle of divisibility of copyright in our law.
This provision, which has long been sought by authors and their
representatives, and which has attracted wide support from other groups,
means that any of the exclusive rights that go to make up a copyright,
including those enumerated in section 106 and any subdivision of them,
can be transferred and owned separately. The definition of ``transfer of
copyright ownership'' in section 101 makes clear that the principle of
divisibility applies whether or not the transfer is ``limited in time or
place of effect,'' and another definition in the same section provides
that the term ``copyright owner,'' with respect to any one exclusive
right, refers to the owner of that particular right. The last sentence
of section 201(d)(2) adds that the owner, with respect to the particular
exclusive right he or she owns, is entitled ``to all of the protection
and remedies accorded to the copyright owner by this title.'' It is thus
clear, for example, that a local broadcasting station holding an
exclusive license to transmit a particular work within a particular
geographic area and for a particular period of time, could sue, in its
own name as copyright owner, someone who infringed that particular
exclusive right.
Subsection (e) provides that when an individual author's ownership
of a copyright, or of any of the exclusive rights under a copyright,
have not previously been voluntarily transferred, no action by any
governmental body or other official or organization purporting to seize,
expropriate, transfer, or exercise rights of ownership with respect to
the copyright, or any of the exclusive rights under a copyright, shall
be given effect under this title.
The purpose of this subsection is to reaffirm the basic principle
that the United States copyright of an individual author shall be
secured to that author, and cannot be taken away by any involuntary
transfer. It is the intent of the subsection that the author be
entitled, despite any purported expropriation or involuntary transfer,
to continue exercising all rights under the United States statute, and
that the governmental body or organization may not enforce or exercise
any rights under this title in that situation.
It may sometimes be difficult to ascertain whether a transfer of
copyright is voluntary or is coerced by covert pressure. But subsection
(e) would protect foreign authors against laws and decrees purporting to
divest them of their rights under the United States copyright statute,
and would protect authors within the foreign country who choose to
resist such covert pressures.
Traditional legal actions that may involve transfer of ownership,
such as bankruptcy proceedings and mortgage foreclosures, are not within
the scope of this subsection; the authors in such cases have voluntarily
consented to these legal processes by their overt actions--for example,
by filing in bankruptcy or by hypothecating a copyright.
Amendments
1978--Subsec. (e). Pub. L. 95-598 inserted ``, except as provided
under title 11''.
Effective Date of 1978 Amendment
Amendment effective Oct. 1, 1979, see section 402(a) of Pub. L. 95-
598 set out as an Effective Date note preceding section 101 of Title 11,
Bankruptcy.
