Who owns the copyright to published works?
By Professor Lucio Lanucara, Faculty, School of Business and Information Technology,
Central New Mexico Community College
Michelson IP Educator in Residence, National Association for Community College Entrepreneurship
The issue of who owns the copyright to a published work can be complex, with no straightforward answers. Publishing contracts can oftentimes diminish the legal rule of ownership by the author. When you open a book or look at a magazine, you’re looking at the result of many different ownership structures. These include exclusive ownership by the author, exclusive ownership by the publisher, to various mixed situations.
For those involved in business or creative activities, it is necessary to fully understand how these situations occur. This helps to avoid giving away or violating copyright.
U.S. Law: Who owns the copyright?
In the United States, the Copyright Act (Title 17 US Code) states that intellectual property belongs to the author, unless otherwise specified in a publishing contract. There are, however, various ways in which this default situation can change.
For instance, in a “work made for hire” agreement, it is explicitly specified that the author is developing the work for the publisher. This is typically the case for software programmers. It can also happen for publishing contracts, particularly for works that aggregate the contribution of many authors.
A more common method that publishers use to acquire copyrights over published material is by outlining in their publishing agreement an exchange for a lump sum and/or a percentage of the sales. Alternatively, an author might just license the work to the publisher. The publisher might also acquire the copyright and grant a limited license back to the author. Finally, the publisher may publish the work as an Open Education Resource (OER), under a Creative Commons license for example.
Duration of copyright protection – How long does it last?
Copyright ownership between the author(s) and the publisher also impacts the duration of the copyright, depending on whether the right originated from a person or from a business or legal entity. For works created after January 1st, 1978, the Copyright Act states that the duration is for the life of the author plus 70 years.
You can also transfer the copyright to a different party altogether. However, for an anonymous work, a pseudonymous work, or a work made for hire, the copyright lasts 95 years from the year of its first publication or a term of 120 years from when it was created, whichever expires first. These terms do not change when the copyright is transferred to third parties.
The Curious case of “copyright orphans”
With the 1978 reform of the Copyright Act, parties no longer need to publish the work to obtain the copyright. These so-called “copyright orphans”, or situations in which the copyright has not expired but it is very difficult or impossible to find out who owns the copyright, puts parties interested in using a work in the difficult position of either having to renounce if they cannot figure out who the party to ask for a license is, or to go on with the risk of being subject to legal actions from the legitimate owners.
“Who Owns the Copyright?” Conclusion
Sometimes it is difficult to know whether an intellectual property right is owned by the author, their estate, the publisher, a third party to which the right has been transferred, or if it has expired altogether.
This has two major implications:
- If you are the author of the copyrighted work, you might want to weigh carefully whether you want to transfer your rights and for what compensation.
- If you are publishing a work authored by someone else, you want to make sure you know exactly what rights belong to who and, if needed, to ensure contractually that you own what you consider necessary for your project.
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