Copyright Law Guide

1.1 What Copyright Is
1.2 Subject Matter of Copyright
1.3 Securing Copyright Protection
A. Works First Published Before March 1, 1989
B. Works First Published on or after March 1, 1989
1.4 Copyright Ownership
A. Works Made for Hire
Table 1-1 Works Made for Hire
B. Contributions to Collective Works

What is copyright? How long have we had a “copyright law”? Where does copyright law come from? Answering these questions is an excellent way for us to begin our study of copyright law and the church. Article I, Section 8, of the United States Constitution gives Congress the authority “to promote the progress of… the useful arts, by securing for limited times to authors . . . the exclusive right to their respective writings.” This clause not only helps to define the concept of copyright, but it also expresses the purpose underlying copyright law. According to this clause, a copyright is an exclusive right of an author in his or her writings that is secured for a limited time by federal law. Pursuant to this authority; Congress has enacted a number of copyright laws, the most recent being the Copyright Act of 1976 (which took effect on January 1, 1978). 

Why did the drafters of the Constitution give Congress authority to bestow upon authors the “exclusive right to their respective writings”? Was it to make authors and publishers wealthy at the expense of the public? While this is a common conception, the Constitution itself clearly indicates otherwise. Copyright law exists to “promote the progress of the useful arts.” The theory is simply this—unless authors are given exclusive rights in their works, they will have little if any incentive to produce artistic works, and the public itself will be the loser. The United States Supreme Court stated the rationale as follows: 

The economic philosophy behind the clause empowering Congress to grant …copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors…  in the useful arts. Sacrificial days devoted to such creative activities deserve rewards, commensurate with the services rendered. Mazer v. Stein, 347 US. 201 (1954).

Let’s illustrate this concept further. Bob is the music pastor at First Church. He wants to save the church money, and so several times during the year he purchases a single octavo that he duplicates 30 times for each member of the church choir. The senior pastor is advised that this practice infringes upon the copyright of various music publishers and composers. He reacts with indignation: “The publishers are only concerned about money! I cannot believe that they would not let a church copy music for worship services. As a matter of principle, I refuse to acknowledge that I am doing anything wrong.” The senior pastor tells Bob to continue making copies of music for the choir. The pastor’s actions may save the church some money in the short run, but consider the effect they will have on the publisher and composer. If enough churches engage in similar practices to “save money,” the publisher will soon discover that it is not profitable to publish sacred music. Two alternatives then exist. First, it can charge much higher prices for its music in an effort to remain profitable (this obviously will induce even more churches to duplicate the music). Second, it can refrain from publishing sacred music. 

Similarly, composers receive less compensation for their labors when churches duplicate music for members of the church choir. If enough churches engage in this practice, then many composers will conclude that the remuneration from composing music is not worth the hours and days of labor. After all, not many persons can afford to work for free. 

The result, from the perspective of either the publisher or the composer, may be a reduction in the quantity of available music. And, the ultimate loser in such a case will be the churches themselves, which are deprived of music that otherwise would have been available. One more point—it is entirely possible that the music pastor in the example above is mistaken in his assumption that he is “saving the church some money” by making unauthorized copies on church duplicating equipment. Many accountants would argue that the “true cost” of making the unauthorized copies (including electricity, supplies, depreciation, labor, overhead, etc.) is in fact higher than the cost of purchasing legal copies.

Example. A religious radio station that broadcasts copyrighted religious music without permission was found guilty of “willful infringement” and was assessed statutory damages of $52,500. The station manager admitted that he played copyrighted songs on the radio, and that he had no license or permission to do so. He defended his actions by noting that “the artists have publicly stated their intent to minister through their Christian music” and that “their intent to minister is further accomplished by radio stations broadcasting their music to a listening audience.” The court rejected this reasoning and assessed statutory damages of $52,500 against the station for willful copyright infringement.¹

It is important to recognize that a copyright in a particular work is a property right created by law. Like any other property right, a copyright can be sold, donated, leased, inherited, and divided into parts. It is also protected by law against wrongful use. Section 201 of the Copyright Act makes it clear that “the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will . . . .”  Like certain kinds of property, a copyright exists only for a limited term. The rules defining copyright duration are fully considered later in this book.

Example. Janet owns both a copyright in a book and an acre of land. The copyright and land represent property rights, created by law that can be transferred, donated, pledged, leased, or distributed to heirs upon the owner’s death. Such rights also are protected by law against most forms of conduct inconsistent with the owner’s interests. As a result, the law protects against trespass to the land, or infringement upon the copyright.

Recognizing that a copyright is a property right helps to explain why the music pastor in the example above cannot copy, without authorization, music for his choir. Such copying amounts to a wrongful infringement upon the property rights of the copyright holders. Consider the following analogy. Assume that you purchase a Maytag washing machine. You now own the property and have the legal right to use it, sell it, or otherwise dispose of it. However, you do not have the legal right to make duplicate Maytag washing machines. Only Maytag can do that. Similarly, if you purchase a copy of sheet music, you own that piece of paper. You can sell it, donate it, bequeath it to your heirs, or do anything else with it that is consistent with your ownership interest. But like the Maytag washing machine, you ordinarily do not have the legal right to make copies of it. The important principle is this: a copyright is legally distinct from a material work in which the copyright is embodied. The owner of the copyright in a sacred song has a legal right to the copyright that can be sold, donated, leased, bequeathed, or otherwise disposed of. Likewise, a purchaser of a piece of sheet music containing the copyrighted song has a legal right to that piece of paper, and can dispose of it in any manner he or she chooses. But, the copyright owner does not necessarily have any legal rights in the published copies of the music, and the purchaser of a copy of the music does not have any legal claim to the copyright in the work. 

This distinction between copyright and “a material object in which the copyright is embodied” is clarified in section 202 of the Copyright Act (see Appendix). Understanding this important principle is essential to an appreciation of the law of copyright and the rights of the copyright owner and a purchaser of a copy of the copyrighted work. 

You will recall that the Constitution (quoted above) empowers Congress to “secure for limited times to authors . . . the exclusive right to their respective writings.” Section 106 of the Copyright Act provides that a copyright owner has the exclusive right to do or authorize any of the following (subject to certain limitations discussed later): 

(1) to reproduce the copyrighted work in copies or phonorecords; 

(2) to prepare derivative works based upon the copyrighted work (such as a translation or revised edition of a literary work or an arrangement of a musical work); 

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; 

(4) in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and 

(5) in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.

All of these exclusive rights will be explained in further detail later in this book.

Copyright law, since 1978, has been exclusively federal. Prior to 1978, unpublished works were protected under state law. The Copyright Act of 1976, which took effect in 1978, makes both unpublished and published works subject to protection under federal law.

What can be copyrighted? Section 102 of the Copyright Act specifies that copyright protection “subsists . . . in original works of authorship fixed in any tangible medium of expression.” It defines “works of authorship” to include

(1) literary works, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards; 

(2) musical works, including any accompanying words; 

(3) dramatic works, including any accompanying music; 

(4) pantomimes and choreographic works; 

(5) pictorial, graphic, and sculptural works, which include both two and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, drawings, diagrams, and models; 

(6) motion pictures and other audiovisual works; 

(7) sound recordings; and

(8) architectural works. 

Section 103 provides that “works of authorship” include “compilations,” which are defined as any work “formed by the collection or assembling of preexisting materials …that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Compilations include “collective works,” which are defined as any work “such as a periodical issue…or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 

To illustrate, most hymnals are collective works since they consist of a number of separate and independent works. The key point is this—if a hymnal is a collective work, then it is eligible for copyright protection. Note, however, that the copyright protection only applies to the material contributed by the compiler of the collective work, such as a foreword, any editing, and the arrangement or order of the separate works comprising the collective work. 

Section 103(b) emphasizes that “the copyright in such a work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.” This is a significant clarification. Assume that a publisher assembles a hymnal consisting of 200 copyrighted hymns and 100 “public domain” hymns having no copyright protection. The publisher arranges the hymns in a topical manner, and then obtains copyright protection in the hymnal as a whole in the year of first publication. What is the significance of copyrighting the hymnal? Does it extend the copyright term of any of the copyrighted hymns? Does it resurrect copyright protection in the public domain hymns? The answer to both questions, according to section 103(b), is an unqualified no. What the copyright does is to protect against anyone else making a compilation of the same hymns in exactly or substantially the same order, and to protect any original materials contributed by the compiler. Public domain hymns remain in the public domain, and the term of copyrighted hymns is not affected. Of course, the compiler cannot legally include any copyrighted hymn in the hymnal compilation without the express authorization of the copyright owner. Including copyrighted hymns without authorization would violate the copyright owners’ exclusive right of reproduction.

Speaking of hymn compilations, is it necessary for the hymnal to list a copyright notice for each copyrighted hymn in the compilation? Often, you will see such notices accompanying each copyrighted hymn in a hymnal. And, while many copyright owners condition their consent to the inclusion of their work in a compilation upon the printing of a copyright notice, the Copyright Act indicates that this is not technically required. Prior to March 1, 1989, section 404 of the Copyright Act specified that 

a separate contribution to a collective work may bear its own notice of copyright…. However, a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements [of copyright notice with respect to the separate contributions it contains … . . regardless of the ownership of copyright in the contributions and whether or not they have been previously published. Similarly, section 401(b)(2) provides that “in the case of compilations. . . incorporating previously published material, the year date of first publication of the compilation . . . is sufficient.” 

These provisions continue to govern works published prior to March 1, 1989. 

Works published on or after March 1, 1989, are governed by the copyright law as amended by the Berne Convention. Since copyright notice is no longer required for such works, there technically is no need for a hymnal to contain any copyright notice to protect either itself or any individual hymn that it reproduces (and that was first published on or after March 1, 1989). Of course, few if any hymnals will contain only hymns published on or after March 1, 1989. Hymnals published on or after March 1, 1989, containing hymns first published prior to March 1, 1989, should print an appropriate copyright notice (defined later) either with respect to each individual hymn (published prior to March 1, 1989) or the hymnal as a whole. Copyright Office Circular 3 states, 

[A] separate contribution to a collective work may bear its own notice of copyright, and in some cases, it may be advantageous to utilize the separate notice. As a practical matter, a separate notice will inform the public of the identity of the owner of the contribution. For works first published before March 1, 1989, there may be additional reasons to use a separate notice. If the owner of the collective work is not the same as the owner of an individual contribution that does not bear its own notice, the contribution is considered to bear an erroneous notice. 

While copyright notices are no longer required to obtain copyright protection in works published on or after March 1, 1989, the Copyright Office notes that such notices are “often beneficial.” One of the benefits of such notices is that infringers will not be able to claim that they “innocently infringed” a copyrighted work. 

In summary, while in some cases a copyright notice may no longer be technically required, it nevertheless should always be used. These considerations are discussed more fully in section 1.3. 

Some works generally are not eligible for copyright protection. These include 

(1) works that have not been fixed in a tangible form of expression, such as musical compositions that have not yet been reduced to writing; 

(2) titles, names, short phrases, and slogans; familiar symbols and designs; ornamentation, lettering, and coloring; lists of ingredients or contents; 

(3) ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices; 

(4) works consisting entirely of information that is common property and containing no original authorship, such as standard calendars, rulers, and lists or tables taken from public documents or other common sources.

Example. Pastor Smith prepares his sermons in writing before delivering them to his congregation. The written sermons prepared by Pastor Smith are eligible for copyright protection.

Example. Anne composes the music and lyrics to a sacred song. According to section 102 of the Copyright Act, both the music and the lyrics are eligible for copyright protection. If Anne obtains copyright protection in both the music and lyrics, then it constitutes copyright infringement for anyone else to reproduce the music and lyrics as an integrated whole, or to reproduce either the music or lyrics individually. Therefore, it is no defense to infringement to argue that you have copied “only the lyrics” of a copyrighted song. 

Example. Howard has written a financial guide for churches entitled “The Law and the Profits.” Thinking this title to be creative, he seeks to copyright it. Copyright protection is not available for titles. The book of course is eligible for copyright protection.

Example. Handel is said to have composed much of Messiah in his head before committing it to writing. A musical composition that exists only “in one’s head” is not eligible for copyright protection, even if the composer hums or whistles the music or plays it on a piano. One who overhears such a composition illegally free to reduce it to writing and publish it without violating any copyright interest of the original composer.

Titles, names, and marks may be entitled to protection under federal trademark law; if certain conditions are satisfied. For example, a religious organization that produces a daily radio program cannot “copyright” its program name. But the name may be eligible for trademark or tradename protection if it is used to identify particular goods or services and the name is not confusingly similar to the preexisting name of another organization that offers similar goods or services. Trademark and tradename protection may be pursued by filing an application with the Commissioner of Patents and Trademarks in Washington, DC.

Resource. For additional information on the protection of names, see section 6-05 in Richard Hammar’s book, Pastor, Church & Law (3rd ed. 2000). The protection of names under state nonprofit corporation law, tradenames, and the law of “unfair competition” are all addressed. 

As we have seen, copyright is a valuable property right. How; then, does one acquire copyright protection in a work? Answering this important question not only will help church staff members recognize those persons or organizations that have acquired copyright protection in a given work, but also will help pastors, musicians, and other writers and composers of religious materials understand how they can protect their creative works. 

Under the current copyright law, copyright is secured automatically in any “original work of authorship” the moment it is “fixed in a tangible medium of expression.” No registration with the Copyright Office is required. This “initial” copyright protection exists up until the time the work is “published,” at which time other rules come into play that are discussed later.

Initial, pre-publication copyright protection is available to any “work of authorship” that is original and fixed in a tangible medium of expression. The term “work of authorship” was defined in section 1.2. “Originality” is not defined by the Copyright Act, but has been interpreted often enough by the courts that its meaning is clear. Basically, a work is original if an author created it by his or her own skill, labor, and judgment, and not by directly copying or evasively imitating the work of another. 

One court has stated that “originality means that the work owes its creation to the author and thus in turn means that the work must not consist of actual copying.”2 The key point is this—originality means independent creation, not novelty. If one independently creates a poem or work of literature, not knowing that an identical work had previously been created by another writer, the new work is certainly not novel, but it is original in the sense that it was the independent creation of the author. A federal court expressed this concept as follows: “[I]f by some magic a man who had never known it were to compose a new Keats’ ‘Ode On a Grecian Urn,’ he would be an author, and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.” Obviously, such an author would have a difficult time convincing a jury that he or she independently created the work. 

The courts have held that the test of originality is much stricter when a particular work is based on a preexisting work than if it is not. This certainly makes sense. If one writes a song or a poem that is unlike anything ever written before, it will almost automatically satisfy the test of originality However, if the song or poem is based on or is substantially similar to a pre-existing work, then the requirement of originality will be much more difficult to establish. This is so whether or not the pre-existing work is copyrighted (of course, if the pre-existing work is copyrighted, then the new work not only risks failing the test of originality, but also risks liability for copyright infringement). As a result, the courts have required that new works based on, or similar to, pre-existing works must contain some “substantial, not merely trivial, originality.”⁴ 

To illustrate, a composer who merely makes slight rhythmic changes in a public domain song, or who adds an alto part to a public domain song that did not have one, has not satisfied the requirement of originality and accordingly cannot obtain copyright protection for the variation.5 However, the Copyright Office has stated that “a revision consisting of a change in fingering of two measures, added dynamics in four measures, and three measures of additional music could, in the aggregate” be copyrighted. In any of these cases it must be emphasized that the pre-existing work no longer has copyright protection. If it did, then the issue would not be originality but rather copyright infringement since the right to make derivative works is one of the exclusive rights of the copyright owner. Note also that the requirement of originality is relevant in deciding whether a “derivative work” prepared by a copyright owner (or one having permission from the copyright owner) is eligible for copyright protection separate from the pre-existing copyrighted work upon which it is based. 

Example. Joan composes a musical arrangement to a hymn that contains substantial variations in the musical score (the lyrics are not changed). If the underlying hymn is in the public domain (i.e., no longer subject to copyright protection), then Joan’s arrangement probably has met the test of originality, and is eligible for copyright protection. However, if the underlying work is still subject to copyright protection, then Joan cannot make a derivative work based on that preexisting work (such as a musical arrangement) without the consent of the copyright owner. As a result, her new arrangement not only is not copyrightable, but it is an infringement on the exclusive rights of the copyright owner. 

The next requirement for initial, pre-publication copyright protection is that the work be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated. . . . 6This requirement is intended to restrict copyright protection to only those works that are reduced to some tangible form. A song or book conceived in one’s mind is not protected until it is reduced to a tangible form. 

In summary, initial copyright protection automatically arises in the author of a “work of authorship” that satisfies the requirements of originality and tangible form. The duration of this protection is explained in Chapter 3. 

Once an author publishes a work, he or she may have to comply with certain other requirements to perpetuate the initial copyright protection. 

B. Works First Published on or after March 1, 1989 

Berne Convention
On March 1, 1989, the United States became a party to the “Berne Convention”—an international copyright convention established in 1888 and endorsed by most nations. Participation by the United States in this significant convention has increased the international protections available to American authors. 

To become a party to the convention, Congress had to make various changes in our copyright law (unwillingness to make the required changes was one of the major reasons that it took the United States a century to join the convention). Perhaps the most important change related to copyright notice. Mandatory notice of copyright has been abolished for works published for the first time on or after March 1, 1989. Failure to place a copyright notice on copies of works that are publicly distributed can no longer result in the loss of copyright. Obviously, this was a significant change in our copyright law, since prior to March 1, 1989 the failure to affix a valid copyright notice to a publicly distributed work could have resulted in loss of copyright protection. While copyright notices are not required to obtain copyright protection in works first published on or after March 1, 1989, the Copyright Office maintains that copyright notices are “often beneficial.” One of the benefits of such notices is that infringers will not be able to claim that they “innocently infringed” a work. In summary, while in some cases a copyright notice no longer may be technically required, it should still be used.

The Berne Convention is not retroactive. As a result, the notice requirements for works first published prior to March 1, 1989 remain unchanged. To illustrate, works first published between January 1, 1978 and February 28, 1989 without a valid copyright notice (as defined below) generally lost their copyright protection unless they were registered with the Copyright Office within five years of first publication (and a valid notice added to all copies distributed after discovery of the omission). Works first published before January 1, 1978 without a valid copyright notice generally lost all copyright protection immediately, with some exceptions.

The elimination of the notice requirement has caused much confusion among church staff regarding the copyright status of literary or musical works. For example, suppose that a church would like to make copies of a piece of sheet music. The fact that the music does not bear a copyright notice does not mean that the work is not copyrighted. Clearly, with the elimination of the notice requirement in 1989, it has become more difficult for church staff to determine whether or not they are free to make copies of some works. Church employees cannot safely assume that a work is “in the public domain” merely because it does not contain a valid copyright notice.

copyright notices

In summary, while copyright notices are no longer technically required for most works first published on or after March 1, 1989, they should still be used. What, then, is a valid copyright notice? And, how does the copyright law define “publication?” Let us now turn our attention to these important questions. 

The contents and placement of a valid copyright notice are described in section 401(b) and (c) of the Copyright Act. A valid notice consists of three elements: (1) the “C in a circle” symbol (©), the word “Copyright,” or the abbreviation “Copr.”; and (2) the year of first publication of the work (in the case of compilations and derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient); and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example. Randy Roe writes and publishes a book in 2001. A valid copyright notice would be “Copyright 2001 Randy Roe.” 

phonorecords

A special notice provision applies to “phonorecords.” The copyright law defines “phonorecords” as “material objects in which sounds, other than those accompanying motion pictures or other audiovisual work, are fixed by any method . . . and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The term includes records, audio tapes, cassettes, and CDs. Phonorecords are not copyrightable, since they are merely a physical object embodying a sound recording of a literary or musical work, but that does not mean that the recording is unprotected. Section 101 of the Copyright Act excludes phonorecords from the definition of “copies.” As a result, there is no requirement under section 401 that a copyright notice be affixed in order to protect the underlying literary or musical work embodied in a phonorecord, since the section 401 notice requirement extends only to “publicly distributed copies” from which the underlying work can be “visually perceived.” However, the copyright law does specify that “sound recordings” are eligible for copyright protection (see section 1.2). Sound recordings are defined by the Copyright Office as “a series of sounds . . . produced on a final master recording that is later reproduced in published copies.” This original master recording must be distinguished from phonorecords (which represent publicly distributed copies embodying the sound recording). Since the sound recording embodied in a phonorecord is copyrightable, as is the underlying musical or literary work upon which it is based, Congress was concerned that use of the section 401 notice requirement for both phonorecords of sound recordings and the underlying literary or musical works themselves would result in public confusion. As a result, the copyright law prescribes a different notice for phonorecords of sound recordings. Section 402 specifies that the notice appearing on phonorecords of sound recordings shall consist of (1) a “P in a circle” symbol (p); and (2) the year of first publication of the underlying sound recording; and (3) the name of the owner of the copyright in the sound recording. Section 402 clarifies that “if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice.” A phonorecord notice clearly distinguishes a claim of copyright in the sound recording from copyright in the underlying literary or musical work. 

Example. Pastor White delivers a sermon. If the church records the sermon on a phonorecord (tape or record), the work is thereby reduced to a tangible form and receives initial or pre-publication copyright protection if it is original. The phonorecords containing the sermon need not bear any copyright notice to preserve copyright in the sermon, since phonorecords are not “copies” and therefore the section 401 notice requirements (discussed above) do not apply. However, if copyright in the sound recording of the sermon is to be preserved, then all tapes publicly distributed for the first time before March 1, 1989, should bear the copyright notice applicable to phonorecords of sound recordings, discussed above. This notice is not required, but is strongly recommended, for tapes first published on or after March 1, 1989. 

placement of copyright notices

Section 401(c) provides that the notice shall be affixed to copies of the work “in such manner and location as to give reasonable notice of the claim of copyright.” To illustrate, Copyright Office regulations specify that a copyright notice for a work published in book form may be affixed on the title page, the page immediately following the title page, either side of the front or back cover, the first page of the main body of the work, the last page of the main body of the work, or any page between the front page and first page of the main body of the work if there are no more than ten pages between the front page and the first page of the main body of the work and the notice is prominently displayed and set apart. Similar rules apply to musical works. Other rules apply to single-leaf works, audiovisual works, machine-readable works, and pictorial works. The Copyright Office regulations themselves provide that they merely illustrate acceptable notice placements. They are not exhaustive, and acceptable alternatives probably exist. Of course, it is prudent to follow the Copyright Office guidelines since compliance with them is conclusive evidence that you have affixed your copyright notice in an appropriate position. 

Example. James Smith writes a book in 2001 that is published in 2002. The published book contains the following notice on the title page: “Copyright 2002 James Smith.” This is a valid copyright notice.

Example. A copyright notice reads “Copyright Two Thousand and Two.” Spelling out the year of publication rather than using numerals is acceptable.

Example. A copyright notice reads “Copyright MMII by James Smith.” Stating the year of first publication in Roman numerals has been upheld by the courts, and is a common practice of some publishers. The idea is this—since most readers cannot read Roman numerals, the copyright term of a particular work can be “extended” by reciting the date in Roman numerals. Most persons will be unaware of the actual age (or remaining copyright term) of the work, and will assume that the copyright term has not expired.

Example. James Smith’s name appears as the author of a book on the title page, and several inches below, at the bottom of the page, is the following notice: “Copyright 2001.” If Smith is in fact the copyright owner, is this notice sufficient? Section 406(c) of the Copyright Act provides that “where copies . . .  distributed by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice, the work is considered to have been published without any notice. . . .”As a result, it is imperative that each of the three elements of the copyright notice form a recognizable entity.

defective or omitted notices

What is the effect of a work that is published with a defective or omitted notice? Works first published on or after March 1, 1989, require no copyright notice, so an omitted or defective notice has no legal effect. However, section 401(d) of the Copyright Act specifies that if a work first published on or after March 1, 1989 contains a valid copyright notice, “then no weight shall be given” to an “innocent infringement” defense. That is, infringers cannot argue that they “innocently” infringed on another’s work if that work contained a valid copyright notice. If the notice does not satisfy the requirements of sections 401(b) and 401(c), the implication is that an infringer can assert an innocent infringement defense. The same concept applies to phonorecords under section 402(d).

What about works first published prior to March 1, 1989? Section 405(a) of the Copyright Act specifies: “With respect to copies and phonorecords publicly distributed by authority of the copyright owner before [March 1, 1989], the omission of the copyright notice described in sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if”

(1) the notice has been omitted from no more than a relatively small number of copies…distributed to the public; or 

(2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies …that are distributed to the public in the United States after the omission has been
discovered; or 

(3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner’s authorization of the public distribution of copies…they bear the prescribed notice. 

Also, note that if someone distributes copies of a copyrighted work without authorization from the copyright owner, and no copyright notice appears on such copies, the copyright in the work is not affected since the copies were made and distributed without authorization.

“innocent infringement”

Can one be guilty of copyright infringement for innocently infringing on a copyrighted work from which the copyright notice had been omitted? For works first published on or after March 1, 1989, the answer is yes—since copyright notices are no longer required to ensure copyright protection. However, the Copyright Act indicates that an infringer can assert the defense of “innocent infringement” to avoid or reduce damages if the infringed work either had no copyright notice or had a defective notice (not meeting the requirements of sections 401(b) and 401(c). What if the work was first published prior to March 1, 1989? Assuming that the omission of the copyright notice did not invalidate the copyright (i.e., one of the three exceptions mentioned above applies), the innocent infringer incurs no liability for any infringing acts “committed before receiving actual notice that registration for the work has been made. . . if such person proves that he or she was misled by the omission of notice.”7 Omission of copyright notice ordinarily will result in loss of copyright protection (in works first published before March 1, 1989) if none of the three exceptions described above applies.

errors in copyright notices

A related question is the effect of an error in the copyright notice. For example, what if a notice has an error in the name of the copyright owner, or in the date of first publication, or either the name or date is omitted? The copyright law specifies that if the name listed in a copyright notice is not the name of the copyright owner, the copyright in the work is not affected. In some cases, innocent infringers are protected if they were misled by the recital of the wrong person in the copyright notice.8 If a copyright notice recites a year of first publication that is more than one year later than the year in which publication in fact first occurred, the work is considered to have been published without any notice. If the notice recites a year of first publication that is earlier than the actual year of first publication, the copyright in the work is not affected, but any period of time computed from the year of publication for purposes of any provision in the copyright law is computed from the erroneous date.9 Finally, if a copyright notice contains either no name or no date, the work is considered to have been published without any notice.’¹⁰ 

“publication”
Next, we must define the term publication since this term dictates when the copyright notice should be affixed to copies Of the work, and it is relevant for other reasons that will be addressed later. Section 101 of the Copyright Act defines publication as

the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

The courts have held that publication may occur upon public distribution of a single copy of a work,¹¹ but it does not occur upon the mere printing of a work prior to public distribution¹² or the delivery of a manuscript to a publisher.¹³ 

Example. Mark composed a song in 1988, reduced it to writing, but never publicly distributed copies (i.e., there has been no publication). Mark performs the song in church services on several occasions. Since section 101 of the Copyright Act defines “publication” to exclude public performances, Mark’s public performances do not constitute a publication. This result ordinarily will not be affected by the recording of the service in which the performance occurred, since the resulting phonorecord (tape or record) will not constitute a copy of the work. 

Example. Same facts as the preceding example, except that Mark makes a slide of his song and displays it publicly during a church service to assist the congregation in singing it. This is a public display of the work, and a public display does not constitute a publication. 

Example. Assume that Mark, instead of performing or displaying the song, copies it on pieces of paper that are inserted in church bulletins for use during a morning worship service. The inserts contain no copyright notice. This practice unquestionably constitutes a publication that is not in compliance with the section 401 notice requirements, and therefore Mark’s copyright in the work is nullified unless he can qualify for one of the three exceptions described in section 405(a) of the Copyright Act (mentioned above).

Example. Same facts as the previous example except that Mark composed the song in 2001. His copyright in the song is not affected, since no notice is required for works published on or after March 1, 1989.

Example. First Church obtains permission from a copyright owner to make a transparency of a published song (first published before March 1, 1989) for use during morning worship services. The transparency need not contain a section 401 copyright notice since the public display of the copy through overhead projection does not constitute public distribution of the copy (the notice must appear only on publicly distributed copies).14 Publishers sometimes condition the fabrication of transparencies and other copies upon the insertion of a valid copyright notice in an appropriate location, even though this is not legally necessary. The same result would apply to works first published on or after March 1, 1989. 

Example. Jean writes an article and submits her manuscript to a publisher for review. The submission of a manuscript to a publisher does not amount to a publication of the work. It is appropriate and desirable for an author to note on the title page of a manuscript submitted to a publisher that the manuscript is unpublished, that the author claims copyright protection in the manuscript, and that it is submitted with the understanding and upon the express condition that it not be circulated or in any manner distributed publicly by the publisher without the author’s written authorization. This puts the publisher (and any potential infringers) “on notice” of the owner’s copyright, and probably eliminates the availability of any “innocent infringement” defense. In the event the publisher elects to publish the work, then it will enter into a contractual agreement with the author by which the author either retains the copyright and grants the publisher a license to distribute the published work publicly, or transfers the copyright in the work to the publisher in exchange for royalty payments. 

1.4 Copyright Ownership

Who owns the copyright in a work, and what difference does it make? This section will address both of these questions. Section 201(a) of the Copyright Act states simply that “[c]opyright in a work . . . vests initially in the author or authors of the work.” There is very little difficulty in understanding this provision. The copyright law goes on to state that “the authors of a joint work are co-owners of copyright in the work.” Again, this is straightforward and needs no explanation. There are a few aspects of copyright ownership that are more difficult to understand, including the following: 

• works made for hire
• contributions to collective works
• assignments
• the so-called “divisibility” of copyright ownership
• the distinction between copyright ownership and the material object in which the copyrighted work is embodied 

The last of these issues was considered previously (section 1.4). Works made for hire and contributions to collective works will be considered in turn. The related topics of divisibility and assignment or transfer of copyright are considered separately in another chapter. 

A. Works Made for Hire

In general 

It is common for church employees to compose music or write books or articles in their church office during office hours. What often is not understood is that such persons do not necessarily own the copyright in the
works they create. While the one who creates a work generally is its author and the initial owner of the copyright in the work, section 201(b) of the Copyright Act specifies that “[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author. . . and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

The copyright law defines “work made for hire” as “a work prepared by an employee within the scope of his or her employment.” There are two requirements that must be met: (1) the person creating the work is an employee, and (2) the employee created the work within the scope of his or her employment. Whether or not one is an employee will depend on the same factors used in determining whether one is an employee or self-employed for federal income tax reporting purposes.15 However, the courts have been very liberal in finding employee status in this context, so it is possible that a court would conclude that a work is a work made for hire even though the author reports his or her federal income taxes as a self-employed person.

scope of employment

The second requirement is that the work must have been created within the scope of employment. This requirement generally means that the work was created during regular working hours, on the employer’s premises, using the employer’s staff and equipment. This is often a difficult standard to apply. As a result, it is desirable for church employees to discuss this issue with the church leadership to avoid any potential misunderstandings. Section 201(a), quoted above, allows an employer and employee to agree in writing that copyright ownership in works created by the employee within the scope of employment belongs to the employee. This should be a matter for consideration by any church having a minister or other staff member who creates literary or musical works during office hours, on church premises, using church staff and equipment (e.g., computers, printers, paper, library, secretaries, dictation equipment). 

Example. Pastor B is senior minister of his church. He is in the process of writing a devotional book. Most of the writing is done during regular church office hours, in his office in the church, using church equipment and a church secretary. Pastor B’s contract of employment does not address the issue of copyright ownership in the book, and no written agreement has ever been executed by the church that addresses the matter. Under these facts, it is likely that the book is a “work made for hire.” The result is that the church is the “author” of the book, it is the copyright owner, and it has the sole legal right to assign or transfer the copyright in the book. 

Example. Pastor T is minister of music at her church. She has composed several songs and choruses, all of which were written during regular office hours at the church, using church equipment (piano, paper, etc.). The church has never addressed the issue of copyright ownership in a signed writing. It is likely that the songs and choruses are “works made for hire.” The result is that the church is the “author” of these materials, it is the copyright owner, and it has the sole legal right to assign or transfer the copyright in these works. 

Example. Same facts as the preceding example, except that Pastor T composes the music in the evening and on weekends in her home. While she is an employee, she did not compose the music “within the scope of her employment,” and therefore the music cannot be characterized as “works made for hire.” The legal effect of this conclusion is that Pastor T owns the copyright in the music, and is free to sell or transfer such works in any manner she chooses without church approval. 

Example. Same facts as the previous example, except that Pastor T composes many of her works both at home and at the church office. Whether or not a particular work is a work made for hire is a difficult question under these circumstances. The answer will depend upon the following factors: (1) the portion of the work that is composed at the church office, compared to the portion composed at home; (2) the portion of the work created with church equipment, compared to the portion created with Pastor T’s personal equipment; (3) the portion of the work created during regular office hours, compared to the portion created after hours; and (4) the adequacy of Pastor T’s personal records to document each of these factors. Unfortunately, a staff member’s records may be inadequate. In such a case, work made for hire status will depend upon the staff member’s own testimony, and the testimony of other witnesses (such as other staff members).

Example. A federal court in New Jersey ruled that an innovative educational program created by a police officer was not a work made for hire because it had not been created in the course of his employment.16 When the city with whom the officer was employed learned that he was marketing the program to other cities, it sued him. The city claimed that the program was a work made for hire, and as such the city owned the copyright in the program. The court disagreed. It conceded that the officer was an employee of the city, but concluded that he had not prepared the educational program “within the scope of his employment.” The court defined “scope of employment” to include all three of the following elements: (1) the employee’s work is the kind he was employed to perform; (2) it occurs substantially within authorized work hours; and (3) it is prompted, at least in part, by a desire to serve the employer. The court concluded that the officer’s program failed the first test, for the following reasons: (a) The courts rely heavily on an employee’s job description in deciding whether a particular project is the “kind of work” the employee was hired to perform. In this case, the officer’s job description said nothing about creating educational programs. (b) The court also noted that the degree of control an employer exercises over an employee’s project is relevant in determining whether or not the project is the “kind of work” the employee was hired to perform. In this case, the city exercised no control whatsoever over the officer’s creation of the program. Indeed, the city was not even aware he was working on the project. (c) Courts also consider whether the employee relied on knowledge gained within the scope of his or her employment in deciding whether or not a project was the “kind of work” the employee was hired to perform. The officer in this case gained nothing from his present employment that was useful to him in creating his program. (d) The court quoted from a century-old case: “We do not think . . .  . that if the defendant in spare moments wrote a book or taught a night school or sang in a church the fruits of his extra toil on his own behalf should be swept into the tills of the bank.”17 The court also concluded that the officer’s program failed the second test, since there was no evidence that he produced any portion of the program during authorized work hours. The officer testified that he created the program at home during off-duty hours, and that he did not use any city facilities or resources. Finally, the court concluded that the officer’s program failed the third test, since the officer was not motivated by a desire to serve his employer when he created the program. Rather, the officer was motivated by a desire to make the program available to many cities, including his own. 

Example. A federal appeals court addressed the application of the work made for hire doctrine to works created by a religious leader prior to the January 1, 1978 effective date of the Copyright Act of 1976.¹⁸ Under the Copyright Act of 1909, which governed copyright law until 1978, a work made for hire was described as follows: “[W]hen one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature, . . . in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done.” In short, for an employer to own the copyright in a work made for hire, the work must have been created by the employee at the employer’s “instance and expense.” The court then summarized the “instance and expense” test by noting that “the motivating factor in producing the work was the employer who induced the creation.” The court concluded that the religious order had introduced no evidence “that would demonstrate that it was at [its] ‘instance’ that [its leader] decided to write, teach, and lecture. Works motivated by [his] own desire for self-expression or religious instruction of the public are not works for hire. Furthermore . . .  throughout much of the life of the 1909 Act, courts applied the work for hire doctrine only to traditional, hierarchical relationships in which the employee created the work as part of ‘the regular course of business’ of the employer. In the last decade that the Act was effective, courts expanded the concept to include less traditional relationships, as long as the hiring party had ‘the right to control or supervise the artist’s work.’ We have described the rationale for the doctrine as a presumption that ‘the parties expected the employer to own the copyright and that the artist set his price accordingly.’” 

The church’s tax-exempt status 

If a church transfers the copyright in a work made for hire to an employee, this may be viewed by the IRS as “private inurement” of the church’s resources to an individual. If so, this could jeopardize the church’s tax- exempt status. Neither the IRS nor any court has addressed the tax consequences of such an arrangement to a church. Here are some options:

1. The church transfers copyright ownership to the staff member. This may constitute private inurement. The IRS construes this requirement as follows:

An organization’s trustees, officers, members, founders, or contributors may not, by reason of their position, acquire any of its funds. They may, of course, receive reasonable compensation for goods or services or other expenditures in furtherance of exempt purposes. If funds are diverted from exempt purposes to private purposes, however, exemption is in jeopardy. The Code specifically forbids the inurement of earnings to the benefit of private shareholders or individuals . . . . The prohibition of inurement, in its simplest terms, means that a private shareholder or individual cannot pocket the organization’s funds except as reasonable payment for goods or services. 

When a church employee writes a book during office hours at the church, using church equipment, supplies, and personnel, the copyright in the work belongs to the church. If the church chooses to renounce its legal rights in the book, and transfers the copyright back to the employee, then it is relinquishing a potentially valuable asset that may produce royalty income for several years. Few if any churches would attempt to “value” the copyright and report it as additional taxable compensation to the employee, and as a result it is hard to avoid the conclusion that such arrangements result in inurement of the church’s assets to a private individual. The legal effect is to jeopardize the church’s tax-exempt status. This risk must not be overstated, since only a few churches have had their exempt status revoked by the IRS in the last fifty years, and none because of a transfer of copyright to an employee who created a work made for hire. But the consequences would be so undesirable that the risk should be taken seriously. 

2. The church retains the copyright. The risk of inurement can be minimized if not avoided if the church retains the copyright in works made for hire, and pays a “bonus” or some other form of compensation to the author. 

Example. Pastor G is senior pastor of his church. He writes a devotional book in his office at the church during office hours and using church equipment. He reads an article about works made for hire, and is concerned about the legal implications. He discusses the matter with the church board. In order to eliminate any risk to the church’s tax-exempt status, the church board decides that the church will retain the copyright in Pastor G’s book. The publisher is contacted, and agrees to list the church as the copyright owner on the title page and to pay royalties from sales of the book directly to the church. The church board agrees to pay Pastor G a “bonus” in consideration of his additional services in writing the book. The bonus is added to Pastor G’s W-2 at the end of the year. This arrangement will not jeopardize the church’s tax-exempt status. 

3. The church urges employees to do “outside work” at home. Do you have a writer or composer on staff at your church? If so, it is possible that this person is doing some writing or composing on church premises, using church equipment, during office hours. One way to avoid the problems associated with work made for hire status is to encourage staff members to do all their writing and composing at home. Tell staff members that (1) if they do any writing or composing at church during office hours, their works may be works made for hire; (2) the church owns the copyright in such works; and (3) the church can transfer copyright to the writer or composer, but this may constitute “inurement” of the church’s assets to a private individual, jeopardizing the church’s tax-exempt status. By urging staff members to do all their personal writing and composing at home, the church also will avoid the difficult question of whether works that are written partly at home and partly at the office are works made for hire. 

4. Sermons. Are a minister’s sermons “works made for hire” that are owned by the employing church? To the extent that sermons are written in a church office, during regular church hours, using church secretaries and equipment, it is possible that sermons would be considered works made for hire since they are created by an employee within the scope of employment. However, this issue has never been addressed directly by any court, so it is difficult to predict how a court would rule.

lecture notes

A professor’s lecture notes provide a comparable example. College professors often prepare their lecture notes in their office on campus, using campus equipment. Are these notes, and the lectures themselves, works made for hire? If so, the college owns the copyright in the notes and lectures, unless it has transferred the copyright back to the professor in a signed writing. Prior to the enactment of the Copyright Act of 1976, it was generally assumed that professors’ lectures were an exception to the work for hire doctrine.19 Perhaps the best example of this view is a decision by a California appeals court in 1969.20 The court addressed directly the question of whether a professor (Admiral Rickover) or his employing university owned the copyright in his lectures. In ruling that Admiral Rickover owned the copyright, the court observed the following:

Indeed the undesirable consequences which would follow from a holding that a university owns the copyright to the lectures of its professors are such as to compel a holding that it does not. Professors are a peripatetic lot, moving from campus to campus. The courses they teach begin to take shape at one institution and are developed and embellished at other. That, as a matter of fact, was the case here. Admiral Rickover testified that the notes on which his lectures were based were derived from a similar course which he had given at another university If [this] is correct, there must be some rights of that school which were infringed at [the professor’s current university]. Further, should [he] leave [his current university] and give a substantially similar course at his next post, [the university] would be able to enjoin him from using the material, which according to [the university], it owns.

The court referred to a federal appeals court decision addressing the copyright ownership in Admiral Rickover’s speeches?21 The speeches in question were prepared by the admiral after normal working hours or while traveling. The California court noted that

a person in Admiral Rickover’s position . . . has no normal working hours any more than a university professor. Whatever distinctions between “on” and “off-duty” hours might be appropriate in the case of an hourly employee who punches a clock, they are quite out of place in cases such as Rickover and the one at bar. . . .  It is thus apparent that no authority supports the argument that the copyright to [professor’s] notes is in the university. The indications from the authorities are the other way and so is common sense.

It is important to note that any special exemption professors’ notes enjoyed from the work made for hire doctrine was seriously undermined if not abolished by the Copyright Act of 1976. As noted above, the section 201(b) of the Act specifies that “in the case of a work made for hire, the employer . . . is considered the author . . .  and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” As a result, cases decided before 1978 (when the Act took effect) are of limited relevance, since prior copyright law contained no provision comparable to section 201. Copyright ownership in a minister’s sermons likely will be determined solely by focusing on whether or not the minister created the sermons within the scope of his or her employment. 

Excessive compensation

Staff members who retain ownership of a work made for hire because of a written transfer signed by the church may be subject to intermediate sanctions. Intermediate sanctions are excise taxes the IRS can assess against persons who receive excessive compensation from a church or other charity. The point is this—since the church is the legal owner of the copyright in a work made for hire, it is legally entitled to any income generated from sales of the work. By letting the writer or composer retain the copyright, and all rights to royalties, the church in effect is paying compensation to him or her in this amount. If the work generates substantial income, then this may trigger intermediate sanctions. This would expose the writer or composer to an initial excise tax of 25 percent of the amount of taxable compensation that exceeds what the IRS deems to be reasonable. There is an additional 200 percent tax that can be assessed against the writer or composer if he or she does not return the excess amount to the church. Board members who authorized a transfer of the copyright to the writer or composer may be collectively assessed a tax of 10 percent of the excessive compensation up to a maximum of $10,000.

Resource. The subject of intermediate sanctions is addressed fully in chapter 4 of Richard Hammar’s Church and Clergy Tax Guide (published annually by the publisher of this text).

Key point. Intermediate sanctions can be imposed only against “disqualified persons” and “managers. “IRS regulations define a disqualified person as any person who was in a position to exercise substantial influence over the affairs of the organization at any time during the five-year period ending on the date of the transaction. While a senior pastor ordinarily will meet this definition, other staff members may not. Ac a result, in many churches the risk of intermediate sanctions will be limited to senior pastors who create works made for hire and are allowed by their church to retain the copyright.

Table 1-1
Works Made for Hire—A Checklist of Important Points
• A “work made for hire” is any book, article, or piece of music created by an employee in the course of employment.
• Factors to consider in deciding whether or not a work was created in the course of employment include the following: (1) Was the work written or composed during office hours? (2) Was the work created on church property? (3) Was the work created using church equipment? (4) Was the work created using church personnel?
• The employer owns the copyright in a work made for hire.
• An employer, by a signed writing, can transfer copyright in a work made for hire to the employee who created it.
• A church that transfers the copyright in a work made for hire to the employee who created it is jeopardizing its tax-exempt status, since this may constitute “inurement” of its assets to a private individual.
• A church that transfers the copyright in a work made for hire to the employee who created it may be exposing the employee to intermediate sanctions. 

Key point. Church board members are exposed to an excise tax if they authorize a transfer of copyright in a work made for hire to the employee who created it, if the work generates substantial income. 

Specially commissioned works made for hire 

There is a second kind of work made for hire. The copyright law defines “work made for hire” to include “a work specially ordered or commissioned for use as a contribution to a collective work, as part of an
audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

The second type of work made for hire, as noted above, is “a work specially ordered or commissioned for use as a contribution to a collective work, as part of an . . .  audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Most of these terms are defined in section 101 of the Copyright Act (see appendix). Note that for a commissioned work to be a work for hire, the following three requirements must be satisfied:

(1) the work must be one of the specific types of works listed (audiovisual work, translation, etc.), 

(2) the work must have been commissioned by another party, and

(3) the parties must have both signed a written instrument characterizing the work as a work made for hire. A work generally is “commissioned” if one party requests another to prepare it.

Example. A publisher asks Pastor Judy, a seminary professor, to write a commentary on the Psalms for use as an instructional text. Pastor Judy is not an employee of the publisher. A written contract is 4qned, but no mention is made regarding the status of the work as a work made for hire. The commentary is a specially commissioned work (an instructional text), but it is not a work made for hire since the parties did not agree in a signed writing that it would be a work made for hire. The result is that Pastor Judy is the author and retains the copyright ownership in the work, unless such ownership is otherwise transferred to the publisher or another party.

Example. A publisher asks Pastor Steve, a minister of music, to prepare a musical arrangement of a public domain hymn. Pastor Steve is not an employee of the publisher. A contract is signed by both parties, in which the arrangement is characterized as a work made for hire. A musical arrangement is one of the types of works that may qualify as a specially commissioned work made for hire (the definition of “supplementary works” in section 101 of the Act includes “musical arrangement?’). Since the arrangement was commissioned, and the parties both signed a written agreement characterizing the work as a work made for hire, the requirements for a specially commissioned work made for hire are satisfied. The result is that the publisher is deemed the author of the arrangement, and therefore is the copyright owner. 

Example. Same facts as the preceding example, except that the written contract did not characterize the arrangement as a work made for hire. Under these circumstances, the work cannot qualify as a specially commissioned work made for hire, and accordingly Pastor Steve remains the author and copyright owner unless ownership is otherwise transferred. 

Example. A religious periodical asks Pastor Larry to write an article on a selected issue. A contract is signed that merely recites a deadline and the amount of compensation. Pastor Larry is not an employee of the publisher. This cannot be a specially commissioned work made for hire (contribution to a collective work) since the parties did not sign an agreement characterizing the article as a work made for hire. As a result, Pastor Larry is the author and copyright owner unless ownership is otherwise transferred. 

B. Contributions to Collective Works 

Section 201(c) of the Copyright Act specifies that “[c]opyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contributions as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” This provision certainly makes sense. At the time a contribution to a collective work is created, the collective work is not yet in existence. As a result, the basic rule of section 201(a), that “copyright . . . vests initially in the author or authors of the work,” applies. 

Let’s see how this provision works in the context of a hypothetical situation. Assume that ABC Press is the publisher of a monthly devotional magazine that consists of articles submitted to it by various authors. The magazine meets the definition of a collective work. John is a minister who prepares an article and submits it to ABC Press for possible publication in the magazine. The article, first written by John in April of 2001, is accepted for publication in the December 2001 issue. ABC Press and John sign a simple contract under which John is to receive $100 for his article, and John gives permission to ABC Press to publish it in the December 2001 issue. Under these circumstances, section 201(c) prescribes the following consequences: (1) John is the copyright owner of the article (assuming that it is not a work made for hire); (2) John has not “expressly transferred” the copyright in the article to ABC Press according to the terms of the simple contract that was signed; (3) ABC Press has acquired only the “privilege of reproducing and distributing the contributions as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” If, five years later, ABC Press decides to reprint John’s article in the same devotional magazine, it has the right, according to section 201(c), to do so even without John’s authorization.

If however, another publisher sees the article in the December 2001 issue and writes ABC Press to request permission to republish the article in its publication, such a request must be forwarded to John since only he has the authority (being the copyright owner) to grant such permission. Of course, the result in this example would be entirely different had John “expressly transferred” the copyright in the article to ABC Press. In such a case, ABC Press would become the copyright owner, and could use the article in any manner it chose. In addition, it would have the sole right to authorize subsequent publication of the article by other publishers. One thing is clear—authors and publishers must be careful to clarify plainly, and in writing, the nature of the rights being transferred. Misunderstandings are all too common. 

Endnotes 

1 Meadow green Music Company v. Voice in the Wilderness Broadcasting, Inc., 789 F. Supp. 823 (ED. Tex. 1992).
2 L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486,490 (2nd Cir. 1976), cert. denied, 429 U.S. 857 (1976).
3 Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2nd Cir. 1936) (Judge Learned Hand).
4 See note 1, supra.
5 Norden v. Oliver Ditson Co., 13 F. Supp. 415 (D. Mass. 1936); Cooper v. James, 213 Fed. 871 (N.D. Ga. 1914). 

6 Copyright Act section 102(a). 

7 Copyright Act section 405(b).

8 Copyright Act section 405(a).

9 Copyright Act section 405(b).

10 Copyright Act section 405(c).

11 Burke v. National Broadcasting Co., 598 F.2^nd 688 (1^st Cir. 1979).

12 Nimmer on Copyright section 4.04 (1999).

13 Id.

14 Id. at section 7.06[A].

15 See R. Hammar, Church and Clergy Tax Guide chapter 2 (published annually by the publisher of this text).

16 City of Newark v. Beasley, 883 F. Supp. 3 (D.N.J. 1995)

17 Hillsboro National Bank v. Hyde, 75 N.W. 781 (1898).

18 Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d 1322 (9^th Cir. 2000).

19 See, e.g., R. Dreyfuss, The Creative Employee and the Copyright Act of 1976, 54 Univ. Chi. L. Pastor 590 (1987).

20 Williams v. Weisser, 78 Cal. Rptr. 542 (Cal. App. 1969).

21 Public Affairs Associates, Inc. v. Rickover, 284 F.2d 262 (D.C. Cir. 1960).