A copyright confers on its owner a bundle of rights and interests.
But before that copyright interest or right can be validly transferred or assigned to another person or entity, the copyright owner must be sure that they presently own in part or in full the copyright interest that is to be transferred.
Determining copyright ownership means going back to the very origins of the creation or work and tracing all the facts concerning copyright ownership going forward to the present in a “chain of title” search that is similar a real estate title search used to validate land ownership.
If the copyright has never been assigned or licensed or if a previous licensing agreement has expired then the copyright owner is free to assign or license his rights in his work.
Copyright Assignment vs Copyright License
The transfer of a copyright assignment and a copyright license differ greatly in measure and in finality. A copyright assignment occurs when the owner of a copyright transfers to another all of his “bundle of rights” in his original work. On the other hand, a copyright license is an agreement that transfers only a portion of the owner’s rights in the copyright such as a permission to use the copyrighted material in some specified manner and for some limited amount of time. The copyright owner retains ownership of the copyright in the case of a licensing agreement.
Bundle of Rights
Just to refresh some of the memories out there, the Copyright Act of 1976 grants to the author of an original and copyrightable work a “bundle of rights.” The bundle bestows the copyright holder with the exclusive rights of reproduction, adaptation, publication, performance and display of the copyrighted material. There is also a right of distribution of the copyrighted material which is limited by the “first sale doctrine,” which permits that buyer of the copyrighted material to sell or otherwise dispose of the material he bought without the consent of the copyright owner.
Each of the rights and interests contained in the “bundle of rights” is a separate and divisible right conferred on the copyright holder. Each separate and divisible right can be sold or “assigned” or transferred to another and under a written assignment agreement which then makes that person is the new copyright owner as to that specific full or limited transfer of rights.
Copyright Transfer or Assignment Must be in Writing
The most important thing to understand and always remember about a copyright transfer or assignment is that for that assignment to be legally recognizable is must be made through a written agreement signed by the copyright owner.
This rule is established by the Copyright Act of 1976, 17 U.S.C. § 204(a) which requires that any assignment or exclusive license of a copyright be in writing and signed by the person granting the rights. Online computerized agreements are accepted by the courts as a binding form of written agreement sufficient to transfer the rights if signed by the grantor of the rights.
Exclusive vs Non-Exclusive License
There are various types of written transfer of copyright ownership. The Copyright Act of 1976 specifies that the “transfer of copyright ownership is an assignment, mortgage, exclusive license, transfer by will or intestate succession, or any other change in the ownership of any or all of the exclusive rights in a copyright, whether or not limited in time or place of effect, but not including a non-exclusive license.”
That means that if an author grants an exclusive right to publish his novel to his publisher then the publisher receives a part of the copyright to the book.
However, if the author instead grants a non-exclusive right to publish his novel to three small publishing firms then the author alone retains the copyright to work. An “exclusive license” is a written agreement granting one or more rights under a copyright in a manner where no other party will be granted similar rights.
The main “take away” to always keep in mind is that in order for a legally binding transfer or assignment of copyright to take place there must be some sort of “writing” and the writing must be signed by the person granting the copyright interests. In general, if there has been no writing signed then no legally recognizable transfer of copyright ownership has taken place.
Transfer of Copyright under Work-for Hire Agreements
Recognizing copyright transfer or assignment language in work-for-hire and even in general independent contractor work contracts can sometimes be quite difficult.
Unscrupulous employers can intentionally add in assignment of copyright clauses that unjustly benefit the employer and improperly claim copyright assignment and other rights which they have not paid for and are not legally entitled to claim.
If you have questions about your copyright interests or rights, even if under a work-for-hire agreement, it is always worth the few minutes it might take to discuss the situation with an IP lawyer.
In a work-for-hire situation the copyright to the work goes to the employer or the party commissioning the work unless the contract between the parties specifically designates that the employee or creative will retain copyright ownership in any material produced under the contract.
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About the Author: Christine Varad is the principal writer and editor for Varacolors Media. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists.