Who owns the copyright to content I create or have others create for me?

Most of us know that the words we read and photographs we see online, in books, and in other media are probably protected by copyright law. But who owns the text, images, graphics and other copyright protected works? Who may enforce the copyrights?

As mentioned in a previous post, the person who creates a work is the owner of the copyright in that work. The author of a book is the owner of the copyright in the book. The photographer of an image is the owner of that image. But there is one significant exception: when a work is created as a work made for hire.

Under the work made for hire doctrine, an employer owns the works of an employee created within the scope of his or her employment. So long as the creator is an employee and not working on a project outside of his or her normal duties and responsibilities, most likely the work created will belong to the employer. If the employee wants to retain ownership of the copyright of the work, prior to the creation of the work, the employee and employer should discuss an assignment of the copyright to the employee, and consideration should be given for the assignment. Another option is for the employee to receive a license to use the work. In this way, the employee is not prohibited from using the work he or she created.

Transfer of ownership in a work itself does not transfer the copyright. For example, purchase of a piece of original art gives the purchaser the right to own and display the artwork, but it does not convey ownership in the underlying copyright. As a result, the purchaser may not make copies of the artwork, post images of the artwork online, create derivative works or distribute copies of the artwork. Similarly, if a copyright in artwork is transferred by assignment, the assignment does not necessarily include ownership of any material objects created under the copyright. The material objects and the copyright rights are distinct and treated separately.

Sometimes authors or other creators of original works collaborate on a project, such as computer software. If the contributions of two or more creators are integrated into the overall work and are inseparable, the authors become joint authors and co-owners of the entire work, regardless of the amount of their individual contributions. One software developer may code 10 percent of the program and another may code 90 percent, but both are equal owners of the entire software program. Joint authors may use the work as if there were no other owners, even if the other owner objects to the use. One of the joint owners may, without the consent of the other owners, grant licenses to third parties to use the work. One co-owner may sue for infringement without bringing the other co-owners into the litigation. However, co-owners must account to each other for any profits earned from use of the copyrighted work.

Joint ownership is distinguished from authors making a contribution to a collective work where each individual work remains distinctive and stands alone. Collective works have two different levels of ownership. Authors may own the individual articles or elements of the collective work, and another author may own the copyright in the collection of works.

Ownership in copyrights and the material objects created under copyrights are complex and need to be carefully analyzed before proceeding to exercise rights under the copyright in a work or in the material object created under the copyright. As with most intellectual property rights, caution is the word!

Copying on the internet

Easy is not always better.

Before online marketing, using content in marketing was a deliberate process of finding content, making sure that rights of use were granted, working through multiple steps of proofs and review and ultimately, generating expensive glossy printed material.

That has changed: The world of online marketing has given Internet users the ability to copy and paste content through very simple, no-cost procedures. It’s essentially as easy as right-clicking a source page, opening a destination page, and another right-click to copy content to a destination page. However, easy can lead to some unfortunate results.

Debates continue over the rights that content owners should have online. Some argue that because the content has been posted online, it should be available for use by others, with very few, if any, restrictions. Despite the rapid rate of change in technology, there are fundamental principles that have not changed.

Copyright law protects original works of authorship and original content, regardless of where it is posted or displayed. Original works may include stories, blog posts, articles, graphics, photographs and other images, marketing materials, drawings and plans. Usually, originality is not difficult to find in a work. As a result, as soon as a work, such as an article or photo, is created, copyright rights exist. Copyright registration is not necessary to claim fundamental copyright rights, but registration is necessary to pursue an infringement claim in litigation, but there is a procedure for expedited registration, so the lack of registration does not need to bar a copyright owner from pursuing his/her rights in a copyrighted work.

The person who creates a work is the copyright owner. The concept of work made for hire is confusing to many. If a third-party service provider is engaged to take a photo or create content, the work is not a work made for hire. With a few exceptions, a work is only a work made for hire if it is created by an employee within the scope of his/her employment. If an outside firm or service provider is used to create a work, the user needs to get an assignment or license from the firm that created the work.

The owner of a copyrighted work has several exclusive rights: the rights to copy, reproduce, distribute, publicly display the work or create derivative works from the original.

What about fair use? Fair use is very limited and does not apply for most commercial uses. If the work is being used in an educational or nonprofit environment for purposes of commenting on the work, it may be fair use. If fair use is a possibility and it is critical to use the work, contact legal counsel to help work through the maze of fair use.

Failure of a copyright owner to include a copyright symbol, whether inadvertently or intentionally, does not change the need for permission to copy, use and display copyrighted works of others.

Infringement occurs when one of the exclusive rights has been violated. Not all copying is intentional. If there is inadvertent copying, courts will consider whether the new work is substantially similar to the original work. Through a series of tests, courts will make this determination. If the two works are substantially similar, and the copyright owner can produce a certificate of copyright registration, it is likely there is infringement and liability and then the courts will determine damages.

It is tempting to say, “I will never get caught,” or “If I am caught, what damages could the copyright owner assert?” It may be true that the risk of getting caught or a copyright owner establishing substantial damages is low. But it only takes one time. Getty Images and other image providers are aggressively pursuing websites that post images that have not been licensed. Further, copyright law provides for statutory damages. In litigation, a copyright owner may elect to recover statutory damages, which are damages unrelated to the amount of actual damages. Statutory damages of up to $30,000 per work may be awarded. For willful infringement cases, the amount of statutory damages is up to $150,000 per work.

One final issue: if an article is posted online, may a user make copies of the article and distribute them? Technically, it is distribution of the work, and a violation of one of the exclusive rights of the owner of the work, but the work is already available publicly. The safe course is to distribute the link to the content and have the recipient of the link directly access the materials.

Copying and using online content is deceptively easy. To avoid potential liability, the best strategy is to create original works. If that is not an option, always seek permission or a license to use the creative works of others.

Diamonds are forever . . . But what about copyright transfers

When I enter into a license agreement for the use of software, I plan on using the software for as long as the license grants me the right and I comply with the terms of the license.  When I sell a used car to a neighbor, I don’t expect to have the right to take it back after a few years.  When I purchase a new electronic device through amazon.com, I don’t anticipate Amazon asking for it back at some time in the future.  Usually when we purchase a product or service we can plan on keeping the product or using the service for as long as we want, or for as long as we continue to pay for the service.

However, in the world of copyright, beginning effective January 1, 2013, the owner of a copyrighted work may terminate rights granted to a third party thirty five years earlier, whether the rights granted were a full assignment of the work, or limited rights under a license. Copyrighted works are virtually any original works created by someone.  For example, songs, music, computer software programs, photographs, electronic images, books and publications, and websites may all be copyrighted works.  The author or creator of the works generally owns them, and has the right to control the use, reproduction, and distribution of the works, among other rights.

Copyright owners may give rights in the copyrighted work to others by assigning the copyright, or the owner may grant a license that allows for use of the copyrighted work under the conditions of the license.  When the copyright in a work is sold or assigned, the original owner of the copyright has no residual or remaining rights in the work.  When a work is licensed, the rights of the owner are subject to the rights of the licensee under the license.

The Copyright Act provision, which was adopted thirty five years ago, allows the owner of a copyrighted work that has either been assigned or licensed, to terminate the assignment or license.  If the owner is dead, the estate of the owner may exercise the right.  When the right is exercised, all rights granted by the copyright owner revert back to the original owner.  This right may be exercised thirty five years after the date of the original assignment or license, which means that this year is the first year these rights may be exercised.  If there are multiple owners of a jointly created work, then a majority of the owners may exercise the right to terminate an assignment or license.

Frequently when a similar right exists in another setting, the parties might seek to have the copyright owner waive the right of termination to avoid the potentially significant impact of the termination right.  Unfortunately, in this case, an agreement to renew the assignment or license after the right to terminate is effective only if it is made after the effective date of the termination.

There is at least one significant exception to right to terminate.  The statute does not apply to works made for hire.  Generally speaking, works made for hire are works created by an employee within the scope of his or her employment.  The employer owns the works in this case, and such works are not subject to the obligation to return the works.  If the work is a work made for hire, the employer, as the owner of the work, may not exercise the right to terminate an assignment or license of the copyrighted work.

Not much has been said about this provision of the Copyright Act, and that’s probably because it has only now been thirty five years since the statute was adopted.  More will be said, and rights will certainly be challenged.  But assignees and licensees of copyright rights need to be aware of this potentially significant development.

Legal traps in social media: What every business should know

As of March 2012, there were 901 million monthly active users on Facebook. Although the stock of Facebook has experienced a roller-coaster ride, which has mostly been on the first steep downhill part of the track, the slide probably says little about the future of Facebook and social media. Technology and innovation behind social media are experiencing a rapid rate of change, and the law usually lags, but an understanding of legal issues is important to avoid liability. Here’s what business owners need to know to avoid legal traps in social media.

User vs. provider

On a simplistic level, there are two ways to approach social media from a legal perspective. One is from the perspective of the user and the other is from the perspective of the provider of social media.  Bloggers and users of social media need to be concerned about liability for what they are posting, and providers of social media portals—including businesses—need to be concerned about potential liability for simply making the social media vehicle available.

Original content or else

When posting content on social media, or in any other environment, there are some basic rules to follow. All content should be original to the person (or company) posting, or there should be a license to post the content. Original works, including text, graphics and photos, are protectable under copyright law. Except in limited circumstances, the owner must grant permission to use or post the content; failure to obtain permission constitutes infringement. Granting attribution, or identifying the owner of the content, is not sufficient for compliance with copyright law. Although it is easy to rationalize that no damages could possibly flow from a blog or other post, statutory damages of up to $150,000 in the case of willful infringement are available.

Angry post: Sleep on it

Social media has a tendency to encourage informality. Informality can lead to negative consequences. Posting without thinking or posting when angry or frustrated can be problematic. Although anger is not a concern legally, the words that fly in angry posts can be. Posting untrue statements that damage the reputation of another may be actionable and lead to liability. The solution is less legal and more practical. Never post when angry, and when frustrated, create the post and let it sit overnight. Hopefully a little time will soften some of the words and reduce the risk of potential liability. Another result of speaking before thinking is the disclosure of trade secrets or other confidential information. Again, thoughtful time before posting can prevent big problems later.

Screening employees online

Employers as users of social media have a great resource for conducting background checks. Unfortunately potential employees sometimes are not very wise in what they post, and frivolous posts can lead to employers making employment decisions based in part on those posts. However, there are limits on what information employers may use. Just as an employer is limited in what questions may be asked in an interview, the scope of information found through social media that an employer may use is also limited. Any information that is prohibited in an interview, but is available online, may not be used in hiring decisions. To be safe, employers should have at least two people involved in the process: one person to retrieve and screen information available through social media and a second person to use the information in making the employment decision.

Social media use policy a must

Employers also face issues of employee use of social media, both on employer time and employee time. Although an employee may be posting on Facebook or tweeting on his/her own time, the employee may be clearly associated with the employer. Employee posts can reflect on the employer. In addition, employee time spent posting on the job may be desired by employers to increase exposure of the company, or the employer may determine that social media on the job is prohibited. For these and several other reasons, employers should have social media use policies.

Businesses and other providers of social media can find themselves facing many of the same issues as users of social media. There are safe harbors to avoid liability for copyright infringement, defamation and other claims, but steps need to be taken to take advantage of such protections.

Social media is alive and well and proper use can provide significant business and personal benefits.