Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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15 BENCH & BAR | digital media). As is frequently the case, if an author creates a work over time in multiple iterations, copy- right protects each iteration once fixed in a tangible medium of expression. On the other hand, if a work is not fixed in a tangible medium of expression—for exam- ple if a speech is given to a crowd, but not written or recorded—the work is not protected by federal copyright. Once a copyright springs into existence, it persists for the duration of the author's life plus a term of 70 years. Works made for hire and anonymous or pseudonymous works—works for which there is no original author's lifetime to use as a base—last for 95 years from publication or 120 years from creation, whichever expires first. WHO OWNS THE COPYRIGHT IN A WORK? e copyright in a work of authorship immediately becomes the property of the "author" (a term of art in copyright law meaning creator of the work). Only the author or someone deriving rights through the author may rightfully claim copyright ownership. It is also common for multiple authors to collaborate on a work. In such cases, "joint authorship"—and therefore joint ownership of the resulting copyright—exists if each author intended to contribute copyrightable expression to the unitary whole that comprises the copyrightable subject matter. Joint authors share an equal, undivided interest in the copyright, and each one can exercise copyright own- ership rights without the permission of the other. e primary twist, however, is that each joint author deriving profits from such right must account to the other joint author(s) by sharing the profits. Ownership issues often arise when a work is created at the request of a third party. Section 201(b) of the Copyright Act provides that the employer or person for whom a work is created is considered the author of a "work made for hire." Works made for hire can arise in two mutually exclusive ways: when an employee creates a work for his or her employer and when an independent contractor creates a work under a valid work for hire agreement. Neither scenario, however, is quite as simple as it may seem. To constitute a work for hire in the employment context, the work must be prepared by an employee acting within the scope of employment. In Community for Creative Non-Violence v. Reid, 490 U.S. 730, 742-43 (1989), the Supreme Court of the United States held that whether the author is an employee or indepen- dent contractor under the work for hire doctrine is determined by traditional principles of agency law, which are also used to make the distinction in other contexts.

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