Exclusive vs. Non-Exclusive Licenses
The exclusive rights of a copyright owner may be licensed to third parties on an exclusive or nonexclusive basis. A copyright exclusive license is one in which ownership in one or more of the copyright owner’s rights is transferred by the copyright owner to a third party. A copyright nonexclusive license occurs when the owner retains ownership of the copyright and retains the right to license the same right to others.
For both exclusive and non-exclusive licenses, the copyright owner can license one or more of the exclusive rights. For example, the copyright owner of a literary work may grant a licensee the right to prepare a derivative work like a film script. But that license, unless it states otherwise, would not authorize the licensee to reproduce, distribute, perform, or display the original work. Alternatively, a copyright owner could enter into an agreement with a licensee that would cover all of the exclusive rights enumerated in Section 106 of the Copyright Act.
There are several important differences between exclusive and nonexclusive licenses. These include:
Ability to Sue
An exclusive licensee of one or more of the exclusive rights is considered to be the owner of those rights. As the owner, the exclusive licensee can sue for infringement of any right that was transferred to the exclusive licensee. On the other hand, a nonexclusive licensee is not considered to be a copyright owner and thus cannot sue for any infringement of the copyright in the work by others.
Writing Requirement
Exclusive licenses must be in writing, but nonexclusive licenses do not have to be in writing.
Recordation and Other Helpful Information About Exclusive and Non-Exclusive Licenses
The U.S. Copyright Office can record copyright transfers (which include only exclusive licenses) or other documents related to copyrights (which can include both exclusive and nonexclusive licenses). Although not a requirement under copyright law, recording these documents with the U.S. Copyright Office can be useful. More information is available on our webpage on Recordation and the Copyright Office’s Circular and Recordation webpage.
Additionally, both exclusive and non-exclusive licenses are subject to a copyright owner’s termination rights. To learn more, check out our webpage on Terminating Copyright Transfers and the Copyright Office’s webpage on Notices of Termination.
| Exclusive Rights | Termination Rights | Ability to Sue Third Parties | Writing Requirement | |
|---|---|---|---|---|
| Exclusive Licenses | One or more exclusive rights can be licensed | Copyright owner can terminate | Exclusive licensee can sue | Must be in writing |
| Non-exclusive Licenses | One or more exclusive rights can be licensed | Copyright owner can terminate | Nonexclusive licensee cannot sue | Does not have to be in writing |
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