You Wrote It, But Who Owns It? An Overview of Copyright Law
by Daniel M. Feeney and Bradley L. Cohn
Whether they realize it or not, emergency physicians as a profession create thousands of copyrightable works every year. You may not have done so yet, but odds are that at least once (and maybe many times) in your career you will write an article for a medical journal or newsletter (such as this one), draft training materials, protocols or pathways for your hospital or practice group, or make a presentation at a seminar or CME program that generates a protectable work. When do you become an author of a work with rights under the copyright laws? How do you preserve and make use of those rights? And how can you use another’s earlier work without violating that author’s rights?
This article provides an overview of the copyright issues likely to be encountered by emergency physicians. Keep in mind that this article is not a substitute for direct legal advice; as with patients, each copyright client has unique interests and should consult with an attorney who can take into consideration all relevant factors.
What Works are Protected by the Copyright Laws?
The Federal Copyright Act protects “original works of authorship.” To qualify for protection, a work must be fixed in a tangible form that is susceptible to exact reproduction. Raw “ideas” are not copyrightable, only the tangible expression of those ideas. Written works, drawings, photographs, transcribed musical compositions, and audio and video recordings of presentations or performances are protectable. Unrecorded speeches or musical performances and methodologies or pathways communicated only verbally are not “fixed” and therefore are not copyrightable works.
Original methodologies, procedures or devices, or improvements on existing methodologies, procedures or devices, may be protectable inventions under patent law, but that issue is outside the scope of this article. To the extent an author creates a copyrightable work (such as an article) that describes such an invention, preserving the rights in that written work does not preserve the rights in the invention itself. Remember, “ideas” are not copyrightable. For example, if you author an article describing a new procedure or device, the copyright law gives you the right to control the copying or distribution of that article. However, copyright law in no way prevents others from performing the procedure or manufacturing the device. Anyone seeking to preserve rights in an invention should consult a patent attorney.
Another obvious limitation is that a person cannot obtain rights in a work that he or she has copied directly from another. However, as described in the final section of this article, you may be able to create an original work that draws on the ideas found in a prior work or that comments on that work. Or, with the permission of the author, you can modify an existing work and create a “derivative” work that is separately copyrightable.
Copyright Ownership
As a general principle, an individual owns the initial copyright in a work he or she has created. There are circumstances, however, where the copyright is owned by someone other than the creator or shared by multiple authors. Keep in mind, however, that copyright ownership can always be transferred by contract. The discussion below addresses how the law allocates ownership rights absent a written agreement to the contrary.
“Work made for hire”
For example, a work prepared by an employee within the scope of his or her employment is called a “work made for hire.” Under the work for hire rule, the copyright in a work created by an employee is owned by the employer, not the employee. This rule applies where: (1) the work’s creator is an employee (as opposed, for example, to a volunteer or independent contractor); and (2) the work is made “within the scope of employment.” In determining whether a person is an employee for copyright law purposes, the ultimate question is whether the hiring party controls the manner and means by which the work is created. If the hiring party pays the person’s employment taxes through a W-2, provides employee benefits (retirement account, insurance, etc.), provides the facilities for the creation of the work, hires the person for an extended or indefinite duration, and has the authority to assign additional work to the person, the work for hire rule will likely apply. By contrast, if the person is merely moonlighting or serves as a non-salaried independent contractor, the work for hire rule will likely not apply.
In addition to the employment requirement, the employee must have created the work in the scope of his or her employment. Thus, projects done on the side, on the employee’s own time, will likely not fall under the work for hire rule. In assessing whether a work is created “in the scope of employment,” factors to consider include whether the work is of the type the person was employed to create, whether the work was created during the employee's expected work hours and with company equipment, and whether the work was created to serve the employer.
If there is any doubt as to whether the work for hire rule would apply, or if the rule does apply but you would like to retain rights in your work nonetheless, it is recommended that a physician confirm in writing, before preparing the work, who will be the owner of the copyright.
There is a second kind of “work made for hire,” covering specially commissioned works that fall into one of the following nine categories: a contribution to a collective work; a part of a motion picture or audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer materials for a test; or an atlas. Here, the party commissioning the work owns the copyright, but only if the creator of the work and the commissioning party agree in writing before the work is created that the resulting work will be a “work made for hire.”
Multiple authors
Where two or more people collaborate in the creation of a work, each co-author becomes a co-owner of the copyright unless there is an agreement to the contrary. Moreover, all of the co-authors own an equal share of the copyright, notwithstanding any differences in the quantity or quality of their respective contributions.
A co-owner of a copyright may freely use or license others to use the copyrighted work and need not obtain permission from other co-owners. Significantly, however, a co-owner who exploits a copyrighted work must account to the other owners for any profits made through such exploitation.
Because many authors solicit the advice and input of colleagues in preparing and revising their work, disputes sometimes arise over who qualifies as a co-author for copyright purposes. First, a co-author’s contribution must be separately copyrightable; otherwise, he or she does not share in the ownership of the copyright for the completed work. Thus, for example, a person offering general ideas or suggestions to an author would not likely qualify as a co-author, since ideas are not independently copyrightable. Second, the co-authors must intend for their contributions to be inseparable and interdependent parts of the entire work. Lastly, all co-authors must intend to have the contributors be joint authors with joint control over the work. Thus, someone who merely provides editorial comments to someone else’s written work, or a research assistant who provides some background material to a writer, would not be a co-owner of the copyright in the end product where the primary author did not intend to share authorship credit.
Here too, to resolve any uncertainty, it is recommended that contributors memorialize their understandings in writing as to copyright ownership in the work being created.
Periodicals, journals, and magazines
Copyright in a contribution to a periodical, anthology, or similar collective work is distinct from copyright in the collective work as a whole. Copyright in the contribution (such as an article in a magazine) rests with the author of the contribution. The contributing author may assign his copyright to the publisher, but, in the absence of any assignment, the publisher is presumed to have only the privilege to reproduce and distribute the contribution as part of that particular collective work (such as a journal issue), any revision to the collective work, and any later collective work in the same series.
Transfer of copyright
Copyright owners can transfer their copyright interests to others. Such transfers can be in the form of non-exclusive licenses, exclusive licenses, or outright assignments of the copyright interest itself. Such transfers should always be in writing and signed by all parties. Assignments and licenses can be recorded in the U.S. Copyright Office; recordation may become critical in the event of a dispute as to ownership interest among transferees.
Protecting Your Work
Although copyrights attach as soon as a work is created, additional steps can and (in many cases) should be taken to secure and preserve those rights. Registering a work with the U.S. Copyright Office makes a public record of your copyright claim, is required before an infringement lawsuit can be brought, and, if registration is made within three months of publication or prior to infringement, allows you to recover certain statutory damages and attorney’s fees in an infringement lawsuit. Although you can register a work online at the Copyright Office’s Web page (www.copyright.gov), it is advisable to seek the assistance of an attorney to ensure that your registration is documented properly.
Whether or not your work is registered, it is advisable to place a copyright notice on your work. The proper form of notice includes: (1) the symbol “©” or the words “Copyright” or “Copr.”; (2) the first year of publication; and (3) the name of the copyright owner. For example: © 2004 Bradley L. Cohn and Daniel M. Feeney. Finally, when you allow another to republish your work, the copyright notice should reference that the work is used with your permission.
Use of Another’s Work
Difficult questions arise when drawing on another’s copyrighted work in preparing one’s own work. While ideas are not protectable, specific language and artistic renderings that express those ideas are generally protected. In creating a work, one can draw on the ideas of others, but should avoid copying the specific language or drawings of others. Thus, when preparing training materials or presentation papers, for example, wholesale copying of text, graphics, or illustrations is not advised without first contacting the copyright owner and obtaining specific permission, preferably in writing.
There are, however, important exceptions to the “no copying” rule.
First, copyright law provides a “fair use” defense for non-commercial activities such as criticism, comment, news reporting, teaching, scholarship, or research. The fair use defense has no absolute rules, but is based on an analysis of factors such as the purpose of the use, including whether it is commercial in nature or serves a nonprofit educational purpose, the amount and substantiality of the copying, the creativity of the work being copied, and the effect of the copying upon the potential market or value of the copyrighted work. An example of a permissible fair use: a drawing of a medical device copied from a user’s manual that appears in a training seminar handout provided to staff nurses and physicians at a single medical facility.
Second, copyright law recognizes what is called a de minimis defense. This defense permits, in effect, copying material that is quantitatively and qualitatively insignificant in relation to the copied work as a whole. A physician seeking to copy elements of someone else’s work should consult with legal counsel to assess whether one or both of these defenses may apply.
Finally, physicians should beware not to photocopy journal or magazine articles for their files or archives. To save a copy of an article for one’s files, it is recommended that a physician either save or obtain an original issue of the periodical or request permission from the publisher or author to make the photocopy.
© 2004 Bradley L. Cohn and Daniel M. Feeney
Footnotes
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