Who Really Owns a Copyright When I’m Hired to Do Work for a Client? – Transcript

[Intro Music] This is Office Talk with Annette Stepanian.

Annette

Hi everyone! Annette here and I’m back with another legal quickie episode. But before I dive in, I wanted to take a minute to thank you for listening and for being here. And for all the great feedback that you guys have been giving me on the podcast. Thank you for the lovely reviews and for subscribing. It really means a lot to me, I even got a few compliments that I have a very soothing radio voice. So thank you for that. If you’re enjoying listening to this podcast, please take a minute to leave a review or to subscribe. It’s kind of like a virtual high five, and it lets me know that I’m on the right track.

So let’s get to it. Here’s the question I received from Rachel, she writes: Hi, Annette, my name is Rachel and I’m a lifestyle photographer. I regularly work with some lifestyle bloggers, and we’re never under a contract. My clients usually have contracts with other brands. And what we do is I take and deliver photos for them. Some shoots are of for example, a room they’ve styled. And oftentimes the items in the room were sent from sponsors. They arrange the vignette, I photograph it, they publish and often share the images with the sponsor with attribution required. Some shoots include items that people have made or created themselves. Unless transfer of copyright is in the terms, I assume I maintain it. But do I, since I’m the creator of the images, but they style the content of the images, but didn’t necessarily create the content? Do we both own the copyright or just me? In all cases, I’m working as an independent contractor.

Rachel, this is a great question. And there’s loads to unpack here. And I know you didn’t really ask this particular question, but I have to touch upon it. Like I can’t help myself. Girlfriend, I need you to start having contracts with your clients. There are tons of reasons why contracts are important. And I’m not going to go into them right now. But you said that you’re working as an independent contractor. So I need you to have an agreement in place that reflects this intention of the parties. I’m going to be talking about the difference between employees and independent contractors in a future episode. And we’re going to be talking about what are the different factors that different agencies look at to determine whether a worker has been properly classified as either an employee or an independent contractor. Now there isn’t a straight up test and formula you can follow. But one of the factors that they look at is if there was an agreement in place, documenting the party’s intention that these folks were indeed entering into an independent contractor relationship.

So make a little reminder for yourself, I want you to listen in on a future legal quickie episode, where I’m going to go more into this, but just please, let’s get your contracts in place.

Going back to your original question about copyrights, I’m going to take a step back and first talk about what is a copyright. It’s a form of protection afforded by the laws of the United States to authors of published or unpublished original works of authorship.

So what does this really mean? Anytime you create an original work that demonstrates some element of creativity, and it’s fixed a tangible form, it might fall under copyright protection. So to be eligible for copyright, a work must be original, it must be fixed to a tangible for – so it can’t just be an idea that you had in your head or a conversation that you had with your girlfriend. It has to display some level of creativity. So you can’t just be regurgitating facts. And it has to fall within one of the eligible categories of work. Those categories include things like literary works – so these are your books, your written material, your blog posts. Musical works – so things like songs and jingles. Dramatic works like plays. Architectural works, including things like blueprints for building. Pantomime and choreography. And things like pictures, graphics, sculptures. So for photographers and graphic designers, these are your photographs, your designs, these are things that can be copyrighted. As well as you have motion pictures and audio visual works and sound recordings.

So you’re a photographer, your creative work is a photograph. So that is definitely something that is eligible for copyright protection. So what’s the big deal about copyrights? Anyway, what’s all this fuss about people fighting over who owns the copyright in a work? Well, copyrights are really cool because they give the copyright holder a variety of different rights. I like to think of them as a bundle of rights.

When you own a copyright in a particular work, you as a copyright owner have that exclusive right to sell the work. You also have the exclusive right to make copies or authorize other people to make copies. You have the right to perform or otherwise display the work and also the right to make derivative works. So not only do you have these like bundle of rights, you can also further like divide and splice up these rights. You can break it down by time period, geographic area, category of use, medium of use and language You can make these rights either exclusive or non exclusive.

Now let’s talk a little bit about Rachel’s question, which is who owns the copyright? The author or the creator of the work is not always the owner of the copyright. More often than not, it is right? So in this situation, Rachel is the one who’s she’s the photographer, and she’s taking a photograph. The presumption is that she is the one who owns the copyright to that photograph. But there might be other categories of people who might be the rightful owner of that copyright. One category is a person or an organization to whom the copyright is legally transferred. Let’s say the author of a song sold the rights to that song to a music label or a record company. Although the author of the song was the one who actually wrote the song, he or she subsequently sold her rights to that music label or record company. So it’s the music labels or record company that is the one who owns the copyright to that song.

Now, this is really important if you’re trying to track down the copyright owner so that you can get permission to use the work. Just remember, it’s not always the author of the work who is the copyright holder.

Another category is an employer for work done by an employee within the scope of employment. So let’s say Rachel, you’re working as a photographer for a magazine. And you it’s your job to take photographs for that magazine for all the different articles that are published. Well, chances are that your photographs that you take within the context and scope of your employment with that magazine  are going to be owned by the magazine and not you.

And the final category is a work made for hire arrangement. You must have a written agreement, and it must be a work made for hire. Now, sometimes people use this term kind of loosely, but there’s actually a specific meaning to it. A work is considered a work made for hire if the work is commissioned for use of one of the following. One, it’s part of a motion picture, other audio visual work. It’s a translation, maybe it’s a supplemental work. So it’s a work that’s been prepared for publication as a secondary piece to something else. So think of like a forward and afterwards some sort of map or chart or a table, something to that effect. A compilation. An instructional text, a test, an answer material for a test, or an atlas.

Let’s take a step back. Let’s go back and let’s talk about Rachel situation. She is a photographer, and has the work at issue is a photograph that she has taken. Is that eligible for copyright? Yes, because it is an original, it exercises some level of creativity, it’s fixed to tangible form, and it falls under one of the categories of work that is eligible for copyright protection.

The next question is who owns this copyright? Let’s run through the different scenarios. The presumption is that as the author of the work, Rachel is the one who is also the copyright owner. So that’s the presumption. But let’s run through the different categories and see if maybe she falls under any of those.

Has Rachel legally transferred the copyright to another person or organization? No, she doesn’t even have a contract in place. And I know I’m rubbing it in a little bit. But I’m trying to make a point. There’s nothing in writing, there’s no indication that there’s been agreement that she’s going to be legally transferring this copyright in these photographs to her client.

Is this an employer employee relationship where the work is being done in the scope of employment? No, she indicated that she does this work as an independent contractor, and there is no employer employee relationship.

And finally, is this a work made for hire arrangement?  A work made for hire means that the two parties need to expressly agree in writing and that the work needs to fall under one of the categories for work made for hire work. So she doesn’t have an agreement. I know I’m totally rubbing it in again. And it doesn’t really fall under one of these categories of work made for hire. So it’s not really a translation. It’s not a supplementary work, yada, yada, yada.

In Rachel’s example, she, as a photographer retains the copyright, because she has not transferred it to anybody else. She’s not an employee. And there, this is not a work made for hire arrangement.

So Rachel is the one who owns the copyright in that photograph, even though she is not the one styling or otherwise arranging what the subject matter of that photo is.

Let me repeat that because you probably were zoned out and you’re listening to this while you’re like working out or something or like vacuuming or doing dishes. Even though Rachel is not the one styling the subject matter, so this stylist or this lifestyle blogger is coming in and creating the creative vision behind it and all that stuff, those photographs are still going to belong to that photographer.

So what does this all mean for your business? If you’re hiring an independent contractor, like a photographer, or a designer, or you’re an independent contractor, creating original work for others, I want you to address the issue of who owns the copyright in your contract. I want you to be clear as to who is going to have the copyright ownership in the works of arts that are created as a result of that agreement. Whether you’re going to be transferring full ownership to that client or whether you’re going to retain the copyright and license it’s use to that client.

I hope this has helped you and given you some context Rachel, so that you know what to do moving forward when you take on these projects with all these fancy lifestyle bloggers. And if you have any specific questions, make sure to contact a lawyer who is up to speed on the facts of your case and circumstances. All of the information that I’m providing here today in this episode is basically for your background and educational purposes only. If you want to learn more about copyrights, head on over to my website at annettestepanian.com and check out the different video trainings I have about copyrights and other areas of the law. You’ll also find contract templates for a variety of different industries and circumstances including those independent contractor agreements.

If you have a question about business and law that you want me to address in a future legal quickie episode, head on over annettestepanian.com/qanda and that spelled out q a n d a. And you’ll find a form where you can submit your question and I might answer it in a future episode. With that said, I hope you have a wonderful day and I can’t wait to talk to you later.

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