the derivative-work author’s intellectual-property rights in the contract, license, or agreement that authorized the production of the derivative work. Id. at 755. Citing Nimmer, we noted that although the right to claim copyright in a derivative work arises by operation of law—not by permission of the underlying copyright owner—the parties may alter this general rule by agreement. Id. (“While the Copyright Act makes authors of derivative works the presumptive owners of copyright rights in their contribution, it also allows parties to adjust those rights by contract.” (quotation marks omitted)). We affirmed the jury’s verdict finding that the parties had agreed that Price Waterhouse would own the copyright in any derivative program. Id.
In this case, the evidence submitted with the summary-judgment motion does not establish as a matter of law that the parties adjusted Schrock’s rights by contract; as in Liu, it may be a jury question. We say “may” because further development of the record might resolve the remaining liability questions as a matter of law. It is undisputed that Schrock was authorized to photograph the “Thomas & Friends” toys, and as the creator of the photos, Schrock’s copyright arose by operation of law.
- Schrock argued in the alternative that if permission to copyright his photos was required, application of agency principles entitled him to copyright protection. That is, he argued that Learning Curve, as HIT’s licensee, had apparent authority to permit him to copyright his photos, and that it did so—albeit not affirmatively but by its silence on the subject. Gracen suggests that application of agency law, including the doctrine of apparent authority, is appropriate in this context. 698 F.2d at 303-04. We need not address this alternative argument, however. As we have explained, because Schrock was authorized to make the photos, his copyright arose by operation of law and did not require authority to copyright from the owner or licensee of the copyright in the underlying works—whether actual or apparent.