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 American Copyright Act, the author is the first owner unless the work is a work made for hire. In that case the employer or commissioning party is legally the author, not merely the owner, which affects the term of protection and removes the author's later right to terminate transfers. A freelancer who creates a work for a client owns it unless it qualifies as a work made for hire or the contract assigns it.

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.

American courts apply the factors set out by the Supreme Court in Community for Creative Non-Violence v Reid (1989), including the hiring party's right to control how the work is done, the skill required, the source of tools, the duration of the relationship, the method of payment, employee benefits and tax treatment. In that case, a sculptor commissioned by a charity was an independent contractor, so he owned the copyright in the sculpture.

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 the United States, a commissioned work is a work made for hire only if two conditions are met: it falls within one of nine statutory categories, and the parties sign a written agreement stating that it is a work made for hire. The categories include a contribution to a collective work, 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 and an atlas.

A stand-alone photograph, such as a portrait or a product shot for a website, usually does not fall within any category, so calling it a work made for hire in a contract does not make it one. To transfer ownership, the client needs a written assignment instead. Many contracts include both: a work-for-hire clause and, as a fallback, an assignment of all rights if the work does not qualify.

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 the United States, a joint work requires each author to contribute independently copyrightable expression and to intend to merge contributions into a unitary whole. Each co-owner may grant non-exclusive licenses without the others' consent, but must account to them for a share of the profits. An exclusive license or assignment needs all co-owners.

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 licenses

Rights move in two main ways. An assignment transfers ownership of the copyright, in whole or in part. A license gives permission to use the work while the owner keeps ownership. A license 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.

An American transfer of ownership, including an exclusive license, must be in writing and signed by the owner. A non-exclusive license can be oral or implied from conduct, for example when a client pays for a work created for a specific use. Transfers can be recorded with the Copyright Office, which gives notice to the world and helps with priority if the same rights are transferred twice.

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.

American authors and their heirs can terminate transfers made on or after 1 January 1978 during a five-year window that begins 35 years after the grant, by serving notice in advance. The right cannot be waived by contract and does not apply to works made for hire. A derivative work, such as a film made before termination, can continue to be exploited, but new derivative works need a new grant.

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 license 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.