Copyrights for Work for Hire
In this second part of a five part series, we look at the copyrights for work for hire and some things to consider when you create content, outsource content, and/or sub-contract anyone to perform work for your business. Take a look at the video below and the transcript of the video is below.
Christi: If I shoot a video for you, for example you paid me to do it.
Christi: But I still own the raw footage?
Tony: You own the footage with a very important exception and this is where it starts to get muddled. The cabaret act also says that works made for hire are owned by the person who pays. Well that’s simple. That’s easy if you just pay me to take the video. I own the copyright and the paper. No it’s not true, even though the statute says if you pay for it you own it. Now there’s two types of works for hire the federal law recognizes and that is employees in the ordinary scope of their business.
Tony: So you run a video production company, if you hired a camera person and they shoot like this production rate here literally your camera person is shooting the production right now. If your camera person is a W2 employee working within the scope of their employment the ownership of the employment work goes to the employer. If however the person is not an employee but an independent contractor, well the copyright vests in the independent contractor. Now there’s important exceptions because the corporate excess as well as work made for hire
is owned by the person who pays and a lot of people stop there. There’s a number of very notable companies particularly on the internet that say if you pay for us you own it and then point to that statute. Well you know when you get a contract and as I was boilerplate up in the top of nobody ever reads it you can say this boilerplate in the Copyright Act also. And when you open the corporate Act the first few sections are definitional and one of the definitions and there is the phrase work for hire. And work for hire is very narrowly defined within the Copyright Act. It’s defined to encompass employees within the ordinary course of their employment. But it’s also defined to be as contractors who are working in particular areas of expression who agree in assigned writing that their work is a work made for hire. And if the work that you’re working in Falls within one of the statutory recognized areas and you have assigned writing saying I own the work that you’re doing for me, well then as the work has created the title vests in you, the payer. Unfortunately for most companies but fortunately for you it’s very very narrowly defined. And I say fortunate because one of the areas that work made for hire agreements are recognized under federal law are audio, visual, and movie productions. So if you’re making audio visual works you can bring your 10 99’s and have them sign a work for hire agreement that has to be signed and then the title and what they do vesting you. If you don’t have that then independent contractors retain all their ownership because of the copyright vests in the author, author and copyright just means the creative artist. What’s surprising in the Copyright Act is what’s not found in their works of photography are not within the scope of what federal law would recognize as a work for hire agreement.
Christi: Still photos may rise fall on the photographer no matter what?
Tony: As its not know matter what because there are a few other categories they might come under.
Tony: But I’ll say ones that never fall under a pure advertising work won’t fall under computer programming. Bring someone in to write code for your company which happens all the time. That doesn’t fall under a work for hire category recognized under federal law. I say sometimes for photography. The work for hire law recognizes contributions made to compilations, so if you are making a book of collected photographs, say photographs of Fayetteville North Carolina, you could probably capture works works made for hire for that collective work.
Tony: There’s some very narrow areas if the photographs were going to be used for those particular type of works then it would be enforceable. But as a general rule I wanted to come in and do still shots for me for a client. That’s not going to be subject work made for hire so what a lot of people will do and what we will do is as part of the services agreement we’ll have the person agree that there’s a wide open license that the buyer can use it for whatever purpose or any purpose they want.
Tony: From now until eternity without paying anything more and the the author, in this case the photographer has a duty to assign all agrees to and will assign all the copyrights. Once the photographs are taken the problem with that is it requires more documentation and if you want to have a transfer of actual ownership you have to have a written assignment. Verbal agreements are not good enough in any area of copyright law in this irks some but it makes sense because, if I sell you my car It’s a pretty good indication. [00:06:02][4.8]
Tony: And like I said she never had a right to to have my car right, well you literally have to explain how she got possession of your car, and there’s only one car with copyrights. There’s not really a physical possession if there’s not one copy.
Tony: So what the law says is if you’re going to have any type of agreement with copyright it needs to be in writing it needs to be signed. Otherwise it’s just too hard to tell what really happened just becomes pure he said, she said so any copyright agreements need to be in a signed writing or they’re not enforceable.