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Who owns copyright?

by admin — last modified 2009-06-13 06:07

Creators, employees, freelancers, heirs, chain of title.

April 2009
This information is for general guidance only; it is not legal advice.

First owner of copyright

The general rule under the Copyright Act is that the first owner of copyright is the creator of the work, or the person responsible for making the sound recording, film, broadcast or published edition. There are, however, important exceptions to this general rule set out in the Act:

  • Employees. Where a work is made by an employee (rather than a freelancer) as part of that person’s job, the employer usually owns copyright. For people employed on staff who are creating material for newspapers, magazines and other periodicals, the employer will own most of the copyright, but the employee will usually own copyright for some purposes (photocopying and publication in books).
  • Freelance photographers, engravers and people doing portraits. Freelance creators usually own copyright in what they create. Someone who pays for work to be created will generally not own copyright, but will be able to use it for the purposes for which it was commissioned. However, there are a number of situations where someone who commissions another person to create material for them will own copyright under the rules set out in the Copyright Act. This is the case in relation to commissioned portraits and engravings, and is sometimes the case for photographs.
  • Films and sound recordings. The first owner of copyright in a film is usually the producer or the person who paid for it to be made. The first owner of copyright in a sound recording is usually the person who paid for the recording to be made. However, in some cases, performers recorded on sound recordings own a share of the copyright in those sound recordings.
  • A State, Territory or Federal Government will usually own copyright in material created, or first published by it or under its direction or control.

Any of the rules in the Copyright Act about who will own copyright when a work is created can be altered by agreement.

Subsequent owners of copyrightCopyright ownership can be transferred by assignment, in a will, or according to the rules of intestacy (if a copyright owner dies with no will).

The transfers from the first copyright owner to the current copyright owner is sometimes referred to as the "chain of title".
More than one owner of the same copyright
The same copyright can be owned by more than one person. There are different ways that this can come about. Examples include:
  • two writers collaborate to write a textbook together,
  • members of a band agree that the copyrights in songs written by any members of the band will be owned by all members of the band,
  • children of an artist inherit the copyrights in their mother's paintings.
Someone who needs permission to use a work in which copyright is owned  by more than one person will need permission from all the owners.
Different owners of different parts of the same copyright
Some rights that form part of the copyright (such as the right to broadcast) can be owned by one person and other rights in the same work can be owned by others. This is standard practice in the music industry: the parts of the copyright relating to most performances, broadcasting and online communication are usually transferred by songwriters to APRA. The remainder of the copyright (relating to reproduction, arrangements, and “theatrical” performances) is usually kept by the songwriter or transferred to a music publisher.
Complementary worksIn some cases, creators work together to create complementary works. Writing music and lyrics is the most obvious example – writing partners such as Burt Bacharach and Hal David, Gilbert and Sullivan, and Rodgers and Hart come to mind. In these cases, the copyrights are separate: the composer owns the copyright in the music and the lyricist owns the copyright in the lyrics. Another example of such a partnership would be the writer and illustrator of a children’s picture book.
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