Copyrights - 17 USC Section 201

01/19/04

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.

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.

Last modified: April 19, 2006