Ownership, authorship and transfers

Knowing that a work is protected is only half the question. The other half is who owns it. The author is the person who creates the work, but the owner may be someone else: an employer, a commissioning client, a production company or a buyer who acquired the rights. Clearance means getting permission from the owner, and selling a work means proving you are the owner. Many disputes in media turn on ownership rather than on whether copying happened.

This lesson explains the default rules on authorship and ownership, the exceptions for employees and commissioned works, joint authorship, and how rights are transferred or licensed. Lesson 10 returns to contracts in detail, and FILM-410 covers the chain of title from the producer's side.

The author as first owner

The general rule in both countries is that the author of a work is its first owner. For a photograph, the author is the photographer. For a song, the authors are the composer and the lyricist. For a script, the author is the writer. For a painting, the author is the painter. The general rule then has exceptions, and the exceptions cover most professional media work.

Under the Canadian Copyright Act, the author is the first owner unless the work was made in the course of employment, in which case the employer is the first owner unless there is an agreement to the contrary. Since November 2012, there is no longer a special rule giving commissioned photographs, portraits and engravings to the person who ordered and paid for them. A freelancer who creates a work for a client therefore owns it unless the contract transfers ownership.

Employees and the course of employment

Works created by employees as part of their jobs belong to the employer. The key questions are whether the creator is an employee rather than an independent contractor, and whether the work was created in the course or scope of the employment.

Canadian courts decide employee status by looking at the whole relationship, including control over the work, ownership of tools, chance of profit and risk of loss, and integration into the business. A staff photographer at a newspaper is an employee; a freelancer who sets her own hours, uses her own equipment and works for many clients is not. The Copyright Act gives employed journalists a special right: unless agreed otherwise, they keep the right to restrain publication of their articles other than in a newspaper or magazine.

Labels in a contract do not decide employment status on their own. A contract that calls someone an independent contractor will not make them one if the relationship looks like employment, and the opposite is also true. Employment status also matters for tax, benefits and employment standards, as BUS-210 explains.

Commissioned works

Commissioned works are where the two countries differ most, and where freelancers and producers most often make mistakes.

In Canada, commissioning a work does not transfer copyright. The person who pays for a wedding album, a corporate video or a logo design does not own the copyright unless the contract says so in writing. The client usually gets an implied licence to use the work for the purpose for which it was commissioned, but the scope of an implied licence is uncertain, so written terms are better.

For personal photographs, the Copyright Act protects the commissioning individual in a specific way: a person who commissions a photograph or portrait for personal or domestic purposes may use it for non-commercial personal purposes, unless the parties agreed otherwise. A couple can therefore share their wedding photographs with family and post them on personal social media, but they cannot sell them or license them to a magazine without the photographer's permission.

Joint works and co-authors

A joint work is created by two or more authors whose contributions are not distinct from one another, or who intend their contributions to be merged into one work. Co-authors share ownership, and the rules on what one co-owner can do without the others differ between countries.

In Canada, a work of joint authorship requires each author to contribute original expression, and courts have also looked at whether the authors intended to create a joint work. Each co-owner generally needs the consent of the others to license the work, so one co-author can block a deal.

Disputes over joint authorship often involve collaborators who never signed anything: a director and a cinematographer who developed a documentary together, two photographers who shared a project, or a writer and a performer who improvised scenes. A short written collaboration agreement at the start avoids most of them by stating who owns what, how decisions are made and how income is shared.

Assignments and licences

Rights move in two main ways. An assignment transfers ownership of the copyright, in whole or in part. A licence gives permission to use the work while the owner keeps ownership. A licence can be exclusive, which means the owner promises not to license anyone else for the same rights, or non-exclusive, which means the owner may license others.

A Canadian assignment, or a grant of an interest by licence, must be in writing and signed by the owner of the right. Assignments can be limited by territory, medium, sector or time. A licensee with an exclusive licence has an interest in the copyright and can be a party to infringement proceedings. Moral rights cannot be assigned, but they can be waived (Lesson 5).

Terminating transfers

Some laws let authors recover rights they transferred long ago. These rules matter to producers who rely on old rights, such as a novel optioned decades ago.

Canada has a reversionary interest rule: when an author who is the first owner assigns copyright other than by will, the rights revert to the author's estate 25 years after the author's death, despite any agreement to the contrary. The rule does not apply to collective works or to works made in employment. Producers acquiring rights in older works by deceased authors should check for it.

Ownership on a film set

On a typical production, rights come in from dozens of contributors. The production company's job is to make sure each contribution ends up owned by, or licensed to, the company, in writing.

• Writers sign an assignment or work-for-hire agreement, usually through a writer's agreement with guild terms where applicable.
• Directors, cinematographers, editors and designers sign deal memos that assign their rights or make their contributions works made for hire, and waive moral rights where the law allows.
• Composers sign composer agreements, which may assign the score or license it while the composer keeps the publishing rights.
• Performers sign contracts that grant the right to use their performances, names and likenesses, under union agreements where applicable.
• Photographers, illustrators and animators on contract sign agreements that transfer or license their work.

The collected agreements form part of the chain of title (Lesson 10). A gap anywhere, such as a camera operator who shot second-unit footage without a deal memo, can delay a sale while the producer tracks down a signature.

Practical rules

Most ownership problems can be solved with three practical rules. First, decide who should own each element before work starts, and write it down. Second, use the right instrument: an employment contract, a work-for-hire agreement where the law allows it, an assignment, or a licence of a defined scope. Third, keep copies of signed documents in an organized file, because they will be needed for every sale, insurance application and dispute.

Ownership of footage, photographs and files

Owning the copyright in a work is different from owning the physical or digital copy. A client who receives a hard drive of raw footage, or a print of a photograph, owns that object but not the copyright, and a photographer who keeps the original files does not lose ownership of a copyright she has assigned. Contracts should deal separately with deliverables, such as which files are handed over, in what format and when, and with rights, such as which uses the client may make. Disputes often arise when a client asks for raw files or project files that the contract never mentioned. Stating clearly whether raw footage, outtakes and editing project files are included, and at what price, avoids most of them.