work to obtain permission to copyright his work from the owner of the copyright in the underlying work. To the contrary, the Act provides that copyright in a derivative work, like copyright in any other work, arises by operation of law once the author’s original expression is fixed in a tangible medium. “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression,” 17 U.S.C. § 102(a), and “[t]he subject matter of copyright . . . includes . . . derivative works,” id. § 103(a). “Copyright in a work protected under this title vests initially in the author or authors of the work.” Id. § 201(a); see also Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir. 1992) (“The creator of the [intellectual] property is the owner . . . .”). While the author of an original work “may obtain a certificate of copyright, which is ‘prima facie evidence’ of its validity,” JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 915 (7th Cir. 2007), “copyright protection begins at the moment of creation of ‘original works of authorship,’ ” id. at 914. This principle applies with equal force to derivative works.
- An exception is a “work made for hire,” defined in 17 U.S.C. § 101 as “a work prepared by an employee within the scope of his or her employment” or “a work specially ordered or commissioned” for inclusion in certain categories of intellectual property as specified in subsection (2) of the definition. Ownership of the copyright in a work made for hire vests in “the employer or other person for whom the work was prepared.” Id. § 201(b); see also Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412 (7th Cir. 1992). The defendants do not argue that Schrock’s photos qualify as works made for hire.