In determining copyright authorship and ownership of your content, you should consider whether anyone else might claim ownership. This could be: an employer if this is the type of work that you normally create in your day to day employment; someone who hired you to create the content if there was a written work for hire agreement in place; or other people who contributed ideas, suggestions or other materials to you as you created the content.
Joint Authorship: When two or more people contribute to a creative work, the work may be considered a work of “joint authorship.” United States copyright law considers a work to be one of joint authorship when each author (1) made a copyrightable contribution to the final work, and (2) the contributors intended their contributions to be merged into a unitary whole. While each contributor may license their interests in the work independently, each co-author must receive an equal share of the proceeds unless they specifically agree otherwise. If more than one person is a joint author of the content that you submit to X4Y, you should determine in writing, before submitting to X4Y, the respective shares between yourselves. Or, if there are multiple contributors to your project and you intend to be the sole owner, then a Work For Hire agreement (the same one explained in paragraph below captioned “Work For Hire Agreement”) needs to be signed by the other contributors. One nuance about Joint Authorship, and the need for a Work For Hire agreement or assignment agreement, is that Joint Authorship does not apply to actors or other individuals who are depicted on screen- especially if they signed a Talent Release or other similar form of release agreement. Instead, Joint Authorship applies to the contributors behind the camera.
Ownership and Works Made for Hire: Outside of the “joint authorship” scenario, United States copyright law states that the creator of a work, whether a film, photograph, music or artwork, is the “author” of the work and owns the copyright in the work created. The owner can then license or assign the copyright.
The exception to this presumed ownership is when the work is a “work made for hire.” A work made for hire occurs in two situations: (1) employees who create the work “within the scope of their employment”; or (2) independent contractors commissioned to create a work if there is a written work for hire agreement signed by both parties and the work falls within one of the nine categories listed in the Copyright Act. A motion picture or other audiovisual work is one of the nine categories identified in the Copyright Act.
Employment: To evaluate whether the content was “created within the scope of employment,” factors that you should consider include:
- whether the work is the kind the creator is employed to create;
- whether the employer’s time, space, materials, and tools were used to create the work;
- whether the employer had direction and control over the work;
- whether the creator was paid by the employer to create the work;
- whether the work is part of the regular course of business of the employer; and
- the language of any employment agreement.
This list is not exhaustive but gives you a sense of the factors that you should consider. The determination of a work’s status as “made for hire” is highly fact intensive and if you have any concerns as to whether an employer may have a claim to ownership of your content, you should consult an attorney.
Independent Contractor: If you were commissioned to create the content and there was a written work for hire agreement in place, then the entity that commissioned the work will likely own the copyright in the content. It will be important for you to review the terms of that agreement to evaluate ownership and whether you have any rights. Again, if you have any doubts, you should consult an attorney.
On the other hand, you may have commissioned someone to contribute to the content. For example, perhaps you commissioned a graphic designer or an editor to assist with the content, or someone else helped you brainstorm about some creative ideas for the content.
Work for Hire Agreement: If anyone else contributed to the content and you intend to retain sole copyright ownership of that content, then you must have a written work for hire agreement or assignment agreement in place from that person. It must be in writing and it must be signed by both you and the other person. Otherwise, the other person owns their own contributions in the work and may even assert Joint Authorship with you. A sample written Work for Hire agreement is available below.
Download Sample Work for Hire Agreement
The information provided herein does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available herein are for general informational purposes only. X4Y is not responsible for your content as that is your responsibility as the creator. For legal inquiries and advice, you should consult with an attorney before submitting content to X4Y.