Entrepreneur's Toolkit - Copyright Authorship

Why Does Authorship Matter?

Under copyright law, the author is presumed to be the initial owner of a copyrightable work - that is, ownership initially vests in the author or authors. It is important to determine who the author of each copyrighted work is to ensure that ownership is in the right place (either by operation of law or by assignment).

Who Is the Author?

The legal basis for copyright in the U.S. originates in the Constitution, which refers to granting exclusive rights to "authors." Generally, the author or authors of a copyrightable work is/are the person or persons who created that work. Where a single person contributed all the copyrightable content of a work, then that person is the sole author. Where two or more persons contributed independently copyrightable content to a joint work, intending that their individual contributions be inseparably merged into a unitary whole, then those persons are coauthors of the work.

Exception: Works Made for Hire

The law recognizes an exception to personal authorship in the case of "works made for hire": works created by employees for a business within the scope of their employment and certain types of works specially ordered or commissioned and created by outside contractors, where the works are explicitly agreed to be works made for hire. In such instances, the business itself is the author, both for purposes of determining initial ownership as well as for copyright registration. Determining that the work was made by an employee within the scope of their employment is generally straightforward (but don't assume your business is the author of your website if you have your HR director create the website on the side); however, complying with the work-made-for-hire requirements for ordered or commissioned works is more difficult and limited to certain types of works - when you commission non-employees to create works for your business, assume they will be the authors and initial owners and make sure to transfer ownership accordingly.

Works Created by Employees

Works created by your business's employees can be deemed authored by (and thus owned by) the business as long as the employees are working within the scope of their employment when they create the works. A diligent business will consider what copyrightable works its employees are creating and whether each work is created by employees within the scope of their employment such that the business (not the employee) is the author and owner of the work from the get-go. Your business should also consider including fallback terms in its employment agreements in which the employees agree to assign copyright ownership in any works they create for the business, such that even if the employees are later deemed authors of any works, the copyright in those works is still owned by the business.

What about Generative AI?

Importantly, the U.S. Copyright Office and supporting case law have taken the position that generative AIs cannot be "authors" within the meaning of the Constitution and implementing legislation, so AI-generated work is not copyrightable (anyone can copy/use it) unless significant human input is involved. The law is not yet clear on how much human input is required for copyright protection to be available, but what is clear is that the term "author" refers only to humans. Registration and protection does extend to the human-generated aspects of works containing AI-generated elements.