“Works made for hire.”  You dream of being a freelance artist. While at your actual job–a secretary at a paper sales company in Scranton, Pennsylvania—a co-worker notices your artistic talent. He hires you to make the cover art for his new book on how to run a bed and breakfast. After a lot of work, you finally make something that he loves and the book is self-published with your masterpiece as the cover. Turns out, your co-worker is quite the salesman and soon his book is appearing in bookstores throughout northeastern Pennsylvania.

This co-worker then begins to use your cover artwork, sans the words, for other purposes unrelated to the book: reproductions for sale, a background image for brochures for his own B&B, artwork for movie productions. When you complain, he says he owns the copyright because he commissioned you to make the art and thus it is a “work for hire.” He cites the following from the United States Copyright Office:

 “Works made for hire” are an important exception to the general rule for claiming copyright. When a work is made for hire, the author is not the individual who actually created the work. Instead the party that hired the individual is considered the author and the copyright owner of the work. (US Copyright Office, “Copyright Basics,” copyright.gov)

You are resigned to your fate when you see a new billboard on the Scranton Expressway with your artwork advertising his beet farm! How is this right?

It’s not right. And it’s not legal. Despite the quote above, he does not own the copyright. What he has done is selectively quoted from the Copyright Office. The relevant section also states:

There are two situations in which a work may be made for hire: 1. When the work is created by an employee as part of the employee’s regular duties, or 2. When an individual and the hiring party enter into an express written agreement that the work is to be considered a “work made for hire” and the work is specially ordered or commissioned for use as: • A compilation • A contribution to a collective work • A part of a motion picture or other audiovisual work • A translation • A supplementary work • An instructional text • A test • Answer material for a test • An atlas

You are not his employee and you are not doing this as part of your regular duties. And you never entered into a written agreement that this is “work made for hire.” You retain the copyright. Soon you may be co-owner of a beet farm.

A copyright for two (or more).  What if two or more people own the copyright for an original work? Do you need each owner’s permission to use the work or just one of the co-owners?

For shared copyrights, each co-owner has the independent right to use, as long as the profits are shared and as long as the agreement does not involve an exclusive license or worldwide use (as well as a few other exceptions).

What if one co-owner dies, does his or her share go to the other co-owners or to the deceased’s heirs/beneficiaries? If one co-owner dies, his or her share goes to the heirs/beneficiaries.

Why register a copyright? When your original work is fixed in a tangible form in a sufficiently permanent medium you automatically have secured copyright. So why register a copyright with the US Copyright Office? Registering is not mandatory. The validity of your copyright is not changed whether you register or not. Why bother with the process of registering?

A key reason is in case you need to litigate. If someone does infringe on your copyright, you cannot file an infringement suit in court until the copyright is registered. At that point, you become “eligible for statutory damages, attorney’s fees and costs” (US Copyright Office, “Copyright Basics,” copyright.gov).  And statutory damages can be substantial, involving compensation per work—perhaps $200 per work, perhaps $30,000 per work, even $150,000 per work if the infringement is deemed to be willful infringement. But this only applies for infringement after registration. For those cases of infringement prior to registering, you can only recover actual damages, which can involve the difficult issue of calculating profits and damages. And actual damages are often significantly less than statutory damages.

There are other reasons to register your original work. For one, registration “establishes prima facie evidence of validity of the copyright” (US Copyright Office, “Copyright Basics,” copyright.gov). Secondly, it can help protect against importation of infringing copies by having a record with the US Customs and Border protection. So, although you hold the copyright automatically, unless you register your original work of US origin, you don’t gain all the benefits of copyright.

Fair use. Well, if copyright infringement is such a serious offense, how is it that so many excerpts are extracted and used from original texts that are protected by copyright, from high school papers to magazine articles to scholarly treatises? How is it that movie clips can be used in analyzing movies?

It is because there is a limitation to the rights granted by copyright law. The concept of “fair use” allows limited use of material from original works without permission from the holder of the copyright. It is not exactly defined how much one can use, and it makes a difference whether the use is for nonprofit  or commercial use, but  this principle allow authors to quote from the works of others. Of course, use of an entire work is hardly ever acceptable.  Furthermore, some things are in the public domain and can be used without the need to get permission, such as works published before 1923, works copyright between 1923 and 1963 but with the copyright not renewed, and works created by employees of the US government as part of their official duties.  The 1968 movie “Night of the Living Dead” is a famous case of something falling into public domain because of a slipup where a copyright notice was inadvertently left off during a period when such a notice was required.

My high school class showed the Avengers: Endgame! This was not legal, right?

Actually, a nonprofit, educational institution can show a movie in class without obtaining permission from the copyright owner if the movie is not for entertainment or recreational purposes, but as part of “face-to-face teaching activities” in a classroom or place devoted to instruction (17 US.S. code 110. Limitations on exclusive rights). For example, if the class showed the movie with subtitles to help English Language Learners acquire language skills or an English class showed a film such as The Crucible to supplement the class reading of that classic. Of course, it would need to be a legal copy.

Hey, my college professor distributed several pages from a published article! Those pages were part of a work that was copyright. Should I turn in the professor?

Well, it won’t help your grade if you turn in your professor. Especially since he might actually be within the law. It is not a simple answer as to the legality, since there are no specific legal guidelines when it comes to copying text for the classroom. The Chicago Manual of Style notes an understood ability to copy for the classroom based on two principles: brevity and spontaneity. That is, if the professor copies only a small portion and does not exceed the number of students in the classroom (brevity) and if there is too little time to get permission (spontaneity).  But one cannot use such text from semester to semester, but rather only for immediate use. And those high schools using the copy machine to substitute for normal school purchases? Strictly a no-no.