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Copyright infringement or work for hire?

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A potential client reached out to you and asked if you could create a product video review. You shot and produced the video, delivered your work, received payment, and even provided a copy of the original video you shot for the client’s use at trade shows. You believed that all was well, but then you saw your original video that you had provided for trade shows on the client’s YouTube channel. Your client had uploaded it and held it out to the public as her own. Now, you are thinking COPYRIGHT INFRINGEMENT, but is it really??

The Copyright

Is uploading the original video onto YouTube a case of copyright infringement? Maybe, maybe not! Isn’t the law fun?

Let’s start with the basics. A copyright is the bundle of exclusive rights that the owner of the copyright holds. These rights are immediate upon creation of the original work and are not dependent on being registered with the United States Copyright Office. Registration may give the copyright holder additional benefits. Of course, there are some exceptions to these rights, such as the Fair Use Doctrine, but let’s leave that for another time.

Who Holds the Copyright?

In most instances, the copyright is held by the creator of the original work. Of course, this is not always the case. In a “work made for hire” case the employer/client and not the employee/independent contractor is considered the author and thus, the holder of the copyright.

Determining if a Work is a “Work Made for Hire” (Work for Hire)

According to The United States Copyright Office the categories of a work for hire include:

  • A work prepared by an employee within the scope of his or her employment; or
  • A work specially ordered or commissioned for use as:

A contribution to a collective work (e.g., magazine)
A part of a motion picture or other audiovisual work
A translation
A supplementary work
A compilation
An instructional text
A test
Answer material for a test
An atlas

In order for a commissioned work to be a work for hire it must not only fall within one of the above nine categories, but there must also be a written agreement that is signed by both parties explicitly stating that the commissioned work is a work for hire.

Who Holds the Copyright in Our Case?

So who owns the copyright here: the video reviewer or the client? As the video was made as part of a commissioned work, we will have to determine whether the video fits in one of the nine categories. Yes, it would fall under “a part of a motion picture or other audiovisual work.”

Now, our determination hinges on whether there was a written agreement or not and what the agreement says. If there was an agreement stating it was work for hire, then the client holds the copyright and can upload it to her YouTube Channel. If there is no agreement, then it can’t be considered a work for hire, and you hold the copyright.

Recourse If You Hold the Copyright

In a case of a copyright infringement, the copyright holder will have a several roads to try in terms of recourse.

They include:

Ask: A simple email or call to the person you believe is committing copyright infringement may be the answer. The person may have been unaware they are committing infringement or may want to avoid any legal issues and quickly remedy the situation.

Cease and Desist: If an informal request doesn’t work, a more official cease and desist letter may be the answer. This letter should state specifically what action you want to be done, by what day, and what action will be taken if the situation isn’t fixed.

DMCA (Digital Millennium Copyright Act) Takedown Notice: A tool for owners of copyrighted content or other content being used without permission to request that the content be removed from the website that is using it without permission.

Lawsuit: The most expensive road to go down is legal action, but it may be the only way to ensure the infringement is ceased in some cases.

Parting Thought

If you are creating original works (or buying them), make sure that before any work is completed that you sign an agreement that clearly lays out important details. This includes copyright ownership and any licenses. Save yourself the trouble later!

Additional Resources:

Copyright Basics

U.S. Copyright Office Definitions

Columbia Law School: Works Made for Hire

Copyright infringement or work for hire?

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