Authorship: Who Actually Owns Copyrighted Material?
Why is determining authorship important?
POSTED BY DISPLAYRIGHTS ON 07/10/2021 @ 8:00AM
When a work is created, it will automatically qualify for copyright protection if the author is the qualifying person. For literary, dramatic, artistic and musical works, the term of protection for authorship is calculated 'post mortem actoris', which is for 70 years after their death ...
Authorship of a copyrighted work is not as clear cut as some people think!
The author of the copyright works will be its first owner under section 11(1) of the Copyright, Designs and Patents Act 1988 (CDPA 1998). However, at the international level, there is no definition of an author though we can infer that for literary and music works, they must be an actual person and not a legal entity.
Under section 9(1) of the CDPA 1998, regarding the authorship of the work, 'authorship' means the person who created it:
in the case of a sound recording, it's the producer
for a film, it's the producer and principal director
when it comes to broadcast, it's the person making the broadcast (the broadcaster)
with a typographical arrangement, it's the publisher
If someone says, "well I appear in it, so I have a right to use it on my website or social media", Section 9 of the CDPA 1998 proves that they have no rights at all, and they leave themselves open to litigation should it be discovered they are using it without an assignment or license.
An interesting quirk of UK copyright law says that the first owner for copyright is the author, however, if the work is made by Her Majesty The Queen or by an officer/servant of the Crown in the course of their duties, this does not apply. The ownership rests with the UK Government instead.
It's also worth noting that for literary, artistic, dramatic and musical works, if the work is done by an employee, in the absence of an agreement to the contrary, ownership belongs to the employer, whoever that may be, though certain other countries have slightly different rules here (for example, in France).
"In order for a copyrighted work to be used, an 'assignment' must take place, or a license must be granted!"
With an assignment of ownership, this may be partial, for example, only some rights may be given, or the transfer occurs for a limited period. It also must be in writing and signed by the author, or by an authorised person on their behalf.
A license is a little different. It is a 'grant of permission' to carry out certain acts. A license can be contractual or gratuitous, and there are different types of license such as exclusive, sole and no-exclusive.
Exclusive: grants rights to the licensee that would otherwise be exercisable to the owner of the copyright in exclusion of all other persons
Sole: the copyright owner remains free to exercise rights of the copyright
Non-exclusive: the licensee has the right to carry out the limited rights –, but not to the exclusion of the copyright owner or third parties
As you can see from this blog post, authorship is not as clear cut as some people think. Just because you appear in something, you can't automatically use it. And if you want to use a copyrighted work that you may commercially benefit from, then you really do need an assignment, or more commonly a license.
Until next time ...
THE DISPLAYRIGHTS TEAM
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