Key Takeaways

  • Authorship refers to the original creator of a work, while ownership defines who holds the copyright and associated rights.
  • The “work made for hire” doctrine and assignment of rights are key exceptions where the author may not retain copyright ownership.
  • Joint authorship creates shared ownership but requires clear intent and contribution from all parties.
  • Employers, freelancers, and collaborators must clearly define ownership through written agreements to avoid disputes.
  • U.S. copyright law does not currently recognize AI as an author; only human creators can hold authorship under current standards.

Whenever authorship and ownership issues arise, the law of copyright indicates that an author is the one who created a body of work. This makes the author the sole owner of the body of work. While an author initially possesses sole ownership, there are various methods by which a publisher may obtain rights to the author's creative endeavors.

Some terms to be familiar with are "work made for hire" and "assignment of rights." Under a work-for-hire doctrine, a publisher will own all the rights to the creative body of work, including the copyright. Under an assignment of rights, an author will grant all or some of the rights to a publisher.

Joint Authorship Doctrine

Things get tricky when there is more than one author because the assignment of rights may cease being so obvious. In this case, a joint authorship doctrine may be needed. This allows rights to be shared, which is particularly important if the publisher is a co-author. A deliberate sharing of rights prevents an inadvertent loss of the publisher's ownership of rights.

When a body of work is created by more than one author, the Copyright Act allows for joint authorship. The goal of the Act is to merge the authors' contributions into inseparable parts of the whole. This allows the authors to be recognized as co-owners of the copyrighted material.

In the world of publishing, collaboration and co-authorship are common. You'll see this with co-writers, illustrators, ghostwriters, book packagers, or a body of work that includes copyrighted material from another artist.

Distinguishing Authorship from Ownership

Although the terms “authorship” and “ownership” are often used interchangeably, they represent distinct legal concepts in copyright law. The author is the person who creates the work and is initially presumed to hold the copyright. Ownership, however, can shift through agreements such as assignments or work made for hire provisions.

An author may assign their copyright to another party or may create a work under circumstances where they are not the legal copyright owner (e.g., an employee creating work within the scope of their employment). Understanding the difference between these two roles is crucial for managing rights and royalties related to creative works.

Critical Joint Authorship Questions

With co-authorship, there are some critical questions that need to be addressed. They include:

  • Who is the author of the body of work that will be published?
  • Who owns the copyright to the body of work?
  • Who decides when, where, and how the work will be published?
  • Who receives the royalties?

Of course, you'll want to have all these matters resolved, in a written agreement, before any work commences. Although a joint authorship doctrine technically applies to the authors, it's also important to publishers because they become the author of a body of work that was created under "work made for hire" provisions. This means a publisher would be affected by a joint authorship doctrine if the publisher isn't the sole author of a body of work created under a "work made for hire" provision.

Authorship and Work Made for Hire

Under the U.S. Copyright Act, a work made for hire is either:

  • A work prepared by an employee within the scope of employment, or
  • A specially ordered or commissioned work where both parties agree in writing that it is a work made for hire and it falls within one of nine categories defined by statute.

In such cases, the employer or commissioner is considered the legal author and owns the copyright. This doctrine overrides the general rule that the creator is the author, which can significantly affect copyright ownership outcomes.

A Publisher's Grant of Rights

When a publisher isn't the sole author of a body of work, a situation may arise when the work commissioned by the publisher is a "work made for hire" agreement, but the publisher doesn't satisfy the requirements of the doctrine. If a problem like this occurs, the body of work could be owned by the author, exclusively.

That's why a publisher may want to obtain a grant of rights, including copyright ownership, to the body of work. In a situation like this, a publisher would have to prove co-authorship, if they were a collaborator.

An example of collaboration could be when an employee, or even a freelancer, adds copyrighted material to work made for hire. This may include illustrations from a staff artist or a freelance artist who created their illustrations under a work made for hire agreement that satisfies the Copyright Act.

Another example that would give way to joint authorship could occur if the body of work is created by employees of the publisher, but a portion of the work wasn't created under the scope of an employee's job description.

Freelancers and Independent Contractors

Freelancers and independent contractors typically retain ownership of the copyright to their work unless a written agreement specifies otherwise. Unlike employees, their creations are not automatically considered works made for hire.

To transfer rights, publishers or hiring parties must obtain a signed assignment of copyright or include clear work-for-hire language that complies with legal criteria. Failing to do so may leave the copyright with the creator, even if payment has been made.

The Law of Copyright

If the work at hand qualifies within the Law of Copyright as joint authorship, the co-authors may allocate the duties and rights among themselves. But, a formal agreement isn't required between co-authors. Therefore, a legal relationship pertaining to co-authorship may occur, even in the absence of an intent to create a co-authorship.

If a co-authorship agreement is lacking, it will most likely be presumed that some of the principles still apply. In which case, the co-authors will have equal ownership of the work. This will be granted even if one co-author contributed more to the body of work than the other co-authors.

AI-Generated Works and Human Authorship

In the emerging area of AI-generated content, courts and the U.S. Copyright Office have maintained that only human authors can be recognized under copyright law. This means that content created solely by AI without human creative input is not eligible for copyright protection.

However, if a human exercises sufficient creative control—such as selecting prompts, curating outputs, or editing results—they may be considered the author of the resulting work. This evolving issue underscores the importance of clear authorship definitions, particularly in collaborative or technology-assisted creations.

Frequently Asked Questions

1. Who is the copyright owner in a joint authorship scenario? All joint authors are co-owners of the copyright, unless they have agreed otherwise in writing.

2. Can a freelancer automatically lose copyright if they’re paid? No. Payment alone does not transfer copyright ownership. A written agreement is required for an assignment or work-for-hire designation.

3. What qualifies a work as “made for hire”? Either it’s created by an employee during employment or it’s specially commissioned with a written agreement and falls under specific legal categories.

4. Can AI be considered an author under U.S. copyright law? No. Only human creators are currently recognized as authors capable of holding copyright.

5. How can ownership disputes be prevented? By using clear, written agreements that define authorship, ownership, and any transfers of rights before work begins.

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