3 Common Copyright Mistakes Creatives & Freelancers Make
We all make mistakes.
So let me refer you to number seven of the Dali Lama of Tibet’s “Eighteen Rules of Living,” where he gives us the following advice, “When you realize you’ve made a mistake, take immediate steps to correct it. And do not let your pride get in the way of taking those steps.”
The main idea is that trying to hide a mistake, once you have become aware of it, by pretending it didn’t happen only perpetuates the goof up and inevitably leads to sinking deeper and deep into the quicksand of oops. There has to be a more than a million zillion possible copyright related snags and unintentional misunderstandings that lurk within the professional shadows just waiting to trip up even the most seasoned of freelancers.
This article seeks to aid freelancers in avoiding a nasty stumble by illuminating the wiles of three of the more common snares that imperil the footsteps of the unwary.
Mistake No. 1: Making Incorrect Assumptions as to Who Owns a Copyright
There are all sorts of scenarios that will work to blur the lines of copyright ownership. The relative or neighbor that asks a student for a logo design for a business, the group of college classmates that all work on a project which later turns out to be a financial goldmine or the employer that misclassifies a job as an independent contractor situation in order to avoid paying high employee payroll taxes all present situations where copyright ownership rights may become muddled.
The author of a work will be legally vested with all rights and interests in an original, copyrightable work. However, the “author” can be (1) the creator of the work, (2) all co-creators of the work or (3) the party that employs the creator and/or the co-creators of a commissioned work. It is easy to hold the mistaken idea that copyright law acknowledges the “creator(s)” of an original work as also, and without exception, the “author(s)” of that work.
A copyright owner holds title to the copyright and all associated rights and interests granted under copyright law such as the right to transfer, license, sell, or grant those rights and interests to another person or entity. In a copyright dispute ownership may be proven by producing (1) evidence detailing the circumstances of the creation of the work, or (2) evidence of the employment status of the creator, or (3) by documentary proof of that a transfer of the copyright title that has taken place. Some copyright ownership disputes must be resolved through an application of State based contract law depending on the understandings and agreements that existed between those claiming authorship of a work. Even a formal registration of a copyright will not always serve to irrefutably a claim of copyright ownership. Formal registration affords only “prima facia” proof of title which can be overcome by anyone with the ability to produce sufficient proof to the contrary.
Mistake No. 2: Sorting Out Independent Freelancer v. Employee Status
This mistake is a deceptively easy trap to fall into especially light of in the many casual relationships the can pop up between students and relatives and creative friends. Everyone starts out with great ideas and good intentions but then a really marketable piece of work results from the collaboration, money starts pouring in and the inevitable copyright use and ownership disputes are set ablaze.
A “work-for-hire” situation arises in only two distinct situations, (1) a work prepared by an employee made within the scope of his employment and (2) a work specially ordered or commissioned under a written agreement signed by the parties that is specifically for use as (1) a contribution to a collective work, (2) as part of a motion picture or audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test or answer material for a test, and finally (8) an atlas.
Any work made (1) without the required written agreement or (2) not falling into one of the enumerated categories will not be recognized as “work-for-hire” situation validly transferring a copyright to an employer. Do not make the mistake of assuming that a written work for hire agreement is valid in all situations. The creative may yet and still own the copyright to his work. For example, a written work-for-hire agreement commissioning oil painting that is not ultimately used a part of a collective work will not be recognized as a valid agreement to transfer copyright ownership to the commissioner of the work.
Just because a work-for-hire writing exists does not also mean that the agreement is valid or legally operative to transfer ownership of a copyright. There are also many non-intuitive exceptions to the work-for-hire “scope of employment” situations such a where a university professor retains the copyright to his lectures provided in the scope of his employment and not his university employer. However, grade school teachers do not retain similar rights in their teaching materials. The main take away here is don’t make the mistake of assuming that the “working creative” retains no copyright interest in his work.
Mistake No. 3: Believing Equality Exists in Co-Author Relationships
Joint authors or co-authors are co-owners of the copyright to their work. For example, if the whole band contributed to creating a song then the whole band will jointly own the copyright to their song. But what about where one person writes the music to a song and another writes the lyrics? Do both “creatives” receive the same amount of royalties from that work? Where there is no collaboration agreement to the contrary, each co-author will be entitled to an equal share of the copyright ownership rights as split among the total number of co-authors. A co-owner in a copyright can also be a non-author in that they may have received an interest in a copyright that passed to them by will or intestate succession or pursuant to a division of property in a divorce action.
Regardless of how the ownership rights arose, co-owners of a copyright are legally considered “tenants in common” which means that each co-owner hold an independent right use or license the right to use the work without the permission of the other owners provided there is an accounting of the profits from that use. And upon the death of any one of the co-owners of a copyright title that co-owner’s share would pass to his or her beneficiaries or heirs and would not pass to the other co-owners of that copyright.
All co-owners must consent to any transfer of copyright ownership rights. And all co-owners must consent to the execution of any exclusive license agreement concerning their copyright interests. An exclusive license is an agreement restricting a grant of proprietary rights in a copyright to one person. For example, an agreement granting a publicist or agent the right to exclusively represent the copyrighted work in the marketplace must be signed by all co-owners of that copyrighted material.
Don’t make the mistake of not protecting your Intellectual Property; Identify your IP today!
This is a guest blog by Kunvay blogger Christine Varad, an attorney and artist who helps educate creatives, freelancers and their clients navigate copyright and Intellectual Property. She has a long standing interest in Intellectual Property law and promoting the rights and interests of writers and visual and performing artists. Christine Varad earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design.
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