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

many factors determine "employment," such as the method of payment for services,
whether taxes and the like are withheld, where the work is done, who supplies
the tools and instrumentalities for the work, the duration of the engagement,
and so on, it is safe to say that a relatively formal and commonly- understood
employment relationship is required, as distinguished from a situation of
special commission or independent contractor. It is also worth noting that, in a
work-made-for-hire situation, the parties may nevertheless agree in writing that
the work is not a work made for hire.

Second, a work may be a work made for hire if it is specially ordered or
commissioned, but only if it meets both of the following requirements: It must
be a work which falls into one of these ten categories: 1) a contribution to a
collective work; 2) part of a motion picture or other audiovisual work; 3) a
translation; 4) a supplementary work; 5) a compilation; 6) an instructional
text; 7) a test; 8) answer material for a test; or 9) an atlas. And, the parties
must expressly agree in a written instrument signed by them that the work is to
be considered a work made for hire.

Thus, the circumstances under which an independently commissioned work is
considered a work made for hire are limited indeed. As a result, the
commissioning party is likely to seek a transfer of copyright, in the form of an
assignment or license.


*349 Transfers and Licenses of Copyright

Copyright, as we have seen, is a form of property. Like other forms of property,
it may be freely transferred. There are, however, certain special rules for the
transfer of copyrights, and certain aspects of the law concerning transfer of
property are of special importance to copyright.

Ownership of the copyright in a work is distinct from ownership of the material
object (the copy or phonorecord) in which the copyrighted work is embodied. So,
too, the transfer of one does not constitute transfer of the other. For example,
if a painter sells her painting (that is, the material object, such as canvas
and oils), she does not automatically transfer the copyright in it. And sale of
that copyright (for example, so as to allow reproduction of the oil painting in
printed posters) does not transfer the material object.

It has often been said that copyright is a bundle of many different rights. As
we shall see, there are many different ways in which a particular copyright may
be exploited. The law allows copyright ownership to be virtually infinitely
divisible. That is, each of those rights, in any subdivision conceivable, may be
sold separately. The owner of any particular exclusive right is deemed to be the
owner of copyright for that right. Thus, for example, the author of an article
may sell the exclusive right of first publication of that article, but nothing
else, to another, and that will result in two "owners of copyright" in that
article -- the purchaser of the right of first publication, who will own only
that right, and the author, who will own all other rights.