"I. Fred Koenigsberg - Copyright Primer" - читать интересную книгу автора (Koenigsberg I Fred)

of a unitary whole (the song). Two scientists collaborating on an article for a
scientific journal are similarly joint authors: their contributions cannot be
"teased out" of the article they have written, and so are inseparable parts of a
unitary whole. But note that the test of joint authorship is intention: The
creation must be made with the intention that the contributions be merged into
one work, and that intention cannot be imputed after the fact of creation if it
was not there to begin with. Case law has held that each contribution on its own
must constitute copyrightable subject matter.


Joint Ownership

Joint ownership of copyright occurs when there is joint authorship. But it may
also occur in other ways -- for example, by transfer of a copyright to two or
more individuals (such as when an author bequeaths his copyright to two
children).

As is the case with other forms of property, joint ownership of copyright is
legally termed a tenancy-in-common: Each joint owner is presumed to own an
undivided proportional interest in the entire work. For example, if there are
three joint owners, each is presumed to own one-third of the entire work. The
presumption may be defeated by an express agreement of the parties.


*348 Works-Made-For-Hire

There are many instances when, although a person has created a work, that
creation has been made at the behest of another. In many such circumstances,
common sense tells us that the person doing the creation should not own the
copyright. As an easy example, consider a company which manufactures an
appliance, and has one of its employees write an instruction manual for the
appliance. Logically, the company, and not the employee, should own the
copyright in the instruction manual.

Such situations are governed by the work-made-for-hire doctrine of the Copyright
Law. Remember that, under the Copyright Law copyright ownership vests initially
in the author of a work. In cases of works made for hire, the law specifies that
the employer or other person for whom the work is prepared is deemed to be the
author [FN9]. Thus, in our example, the appliance company would be deemed to be
the author, and hence the initial copyright owner, of the copyrighted
instruction manual.

The law very specifically defines what is, and therefore what is not, a work
made for hire, in allowing for two, and only two, possibilities.

First, a work made for hire is a work prepared by an employee within the scope
of his or her employment. As the law does not define "employee" or "employment,"
there were differences of opinion over the meaning of these terms until the
Supreme Court resolved the matter. Employment, the Court ruled, has the same
meaning as is commonly understood under the law of agency [FN10]. Thus, while