Creator and first owner.

In the case of written musical or artistic works, the author or ‘creator’ of the work is also the first owner of any copyright in it. The only exception to this is where the work is made by an employee in the course of his or her employment (see below). Also, in some situations two or more people may be joint authors and joint owners of copyright (see also below).

In the case of a sound recording the author and first owner of copyright is the record producer.

Copyright is a form of property which like physical property can be bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the economic rights may subsequently belong to someone other than the original creator or first owner.

In contrast, the moral rights accorded to authors of literary and musical works remain with the author or pass to his or her heirs on death. Such moral rights will last as long as copyright lasts provided the creator did not waive his moral rights.

 

Works created for an employer.

As stated above, in the case of written musical or artistic works, the author or ‘creator’ of the work is also the first owner of any copyright in it, except where the work is made by an employee in the course of his or her employment. In this event, the employer is the first owner of any copyright in the work (subject to any agreement to the contrary).

‘In the course of employment’ is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under ‘contract of service’. Where a person works under a ‘contract for services’ he may be considered by the courts to be an independent contractor and his works may then be considered to be commissioned works (see below).

Any diligent employer will keep records of which person(s) created the work for them which they own. The period of copyright protection may still be linked to the date of the death of the creator(s) – that is the employee(s).

 

Commissioned works.

If you ask or instruct i.e. ‘commission’ another person or organisation to create a copyright work for you, the first legal owner of copyright is the person or organisation that created the work and not you the commissioner, unless you otherwise agree it in writing.

Even though the legal owner of copyright is the creator, it is possible that the commissioner may be considered by the courts to be the beneficial owner of copyright and therefore entitled to legal ownership. This could be where you intend to stop others from using or copying the work that has been commissioned for instance a logo designed to be used as your trade mark.

Whilst it might sometimes be possible for a commissioner to argue that he/she is the beneficial owner of copyright, it is wiser that copyright issues are dealt with as part of the contract beforehand so that everyone knows where they stand, and in copyright law, it is possible to set out beforehand who will be the owner of copyright in a work yet to be created. Of course such an agreement must be in writing and signed by or on behalf of both parties to be effective. Commissioning contracts can also cover who is licensed to use the copyright material that is to be created.

If the commissioning contract does not deal with copyright, it may still be possible for you to use the copyright work that you commissioned without seeking permission, but only for the specific purpose that was understood by everyone at the time of the commission (an implied licence could be argued to exist.) For example, if you commission someone to take photographs for you for instance of your promo or CD cover, then you would be the owner of the copyright in those photographs, but remember, the commission must have been undertaken for money or money’s worth that is equivalent goods or services.

 

Joint authors.

Where two or more people have created a single work protected by copyright and the contribution of each author is not distinct from that of the other(s), those people are generally joint authors and joint first owners (although this might not apply of course where, for example, these people are employees).

Joint ownership might arise for example, if two or more persons collaborated to create a music score, lyrics or song in which case both/all persons involved would be joint first owners of copyright. In this case also, if someone wanted to copy or use a work of joint ownership in some way, all of the owners would have to agree to such a request, otherwise an infringement of copyright could still occur.

On the other hand, where individual contributions are distinct or separate, each person would be the author of the part they created for instance where the music and lyrics of a song are created by two different people. In these circumstances, if you wished to use just the lyrics you would only need the permission of the copyright owner of those, but copying of the whole song would obviously need the permission of the copyright owner of the music too.

 

Transfer of ownership.

Ownership of copyright can of course be transferred, so where something is produced that has involved contributions from more than one person, it would be possible for copyright in all the material to be owned by one person as a result of appropriate transfers. Remember, collaborators can agree in advance that copyright in what is to be produced should be owned by a single person or body. This could be helpful when permission needs to be given in the future to avoid disagreements between the parties. However, alternative solutions that might be equally helpful could involve all parties agreeing licensing arrangements in advance.