The confusing world of copyright ownership | Rachel Brenke – Blog

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The confusing world of copyright ownership

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You produced a product review video. You are the original author, so you own the copyright…right? What if the work was commissioned? What if several pieces included in your video (i.e., music, special effects) were licensed by you for the video? Do you still hold the copyright? Does everyone have some rights? Let’s dive into the confusing world of copyright ownership!

Ownership of Original Content

In the most basic case, copyright is easy peasy. If you made it, you hold the copyright. But life is rarely THAT easy, right? However, let’s go over what the easiest case would be:

You are the author of an original work (e.g., a piece of music, a photograph, a video, etc.). You hold the copyright.

Holding the copyright gives you a bundle of rights over that work. For example, you control any reproduction, any derivative works, any public performances of the work, any distribution of copies of the work, etc. While there are a lot of instantaneous rights once the work is completed, they are not unlimited. The biggest exception is called “Fair Use”, which allows the unlicensed use of copyrighted works in certain instances. For example, a license is not required for some news reporting purposes, educational purposes, and criticism or comparison purposes.

Outside of the “easy case” there are three main instances where the author is not the copyright holder of the “original work of authorship”. They are:

Work Made For Hire

  • Work Made For Hire
  • Transfer
  • License

A work made for hire is defined as:

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

  1. As a contribution to a collective work,
  2. As a part of a motion picture or other audiovisual work,
  3. As a translation,
  4. As a supplementary work,
  5. As a compilation,
  6. As an instructional text,
  7. As a test,
  8. As answer material for a test, or
  9. As an atlas.

If the parties expressly agree in a written instrument signed by them, then the work shall be considered a work made for hire.

In the case of a “work made for hire” (work for hire) the author is not the original copyright holder of the original work of authorship, but rather the employer or person who commissioned the work is. This of course can be contracted around if it is not what you want.

Transfer

The original copyright holder may transfer all or part of their rights over a work. If the transfer is of all exclusive rights, the agreement must be made in writing and signed by the original copyright holder. If the transfer is not for all exclusive rights, it does not have to be in writing.

Copyrights can also be transferred through a will or as personal property (via contract).

License

A license grants someone a limited use of a copyrighted work. This generally comes in the form of a licensing agreement or as a subsection of a business’ terms and conditions. For example, if you are producing a product review video for your blog and need music, you may purchase a license from the copyright holder of a piece of music for the specific use of using it in your video for posting on your blog. Another example is businesses may provide copies of their logos for your business to use in product reviews on your blog, but only for that purpose.

Joint Authorship & Collective Works

Now who owns what when there are multiple authors of individual works making up a larger work? There are two main scenarios in this joint authorship case:

  • Scenario 1: Multiple employees work on a piece for their employer. In this case, it is a work for hire, and the employer holds the copyright unless otherwise agreed to in writing.
  • Scenario 2: Multiple authors contribute to a work intended to become a single work. In this case, all authors will hold the copyright jointly and equally unless otherwise agreed to in writing. One author cannot give away exclusive rights.

In the instance of a collective work, an author must obtain permission to use each copyrighted work in the specific intended manner. The author of the included works will still hold their copyright, and the author of the collective work will hold a copyright to the “new work” but not each individual original work. An example of a collective work is a “Greatest hits of 1980” CD.

If you have license to use a copyrighted work in your work (e.g., a piece of music in your video) does that count as joint authorship or a collective work? In this case, probably not a joint authorship, but it may be a collective work. In that case, you would hold the copyright to the new work (the video), but the copyright to the licensed work (the music) would still be in place.

Let’s throw in another wrench. What if the video was a work for hire? In that case (unless otherwise agreed), the person who commissioned the work would hold the copyright to the new work (the video), and the copyright of the licensed work (the music) would still be retained by the original copyright holder.

Not the outcome you were looking for as the producer of the video? Then make sure you state otherwise in your terms and conditions or in a contract before you begin work!

Additional Resources:

Copyright Basics

More Information on Fair Use

License: Legal Definition

Works Made for Hire

Joint authorship and collective works

Cornell Law School: 17 U.S. Code § 101 – Definitions

The confusing world of copyright ownership

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