When a creator, influencer, or filmmaker produces a piece of content for a brand, such as a video, a custom song, a photo, or an edit, the key question is: Who owns the finished work?
The law provides two main paths for a brand to obtain rights to content.
1. Copyright Assignment or Licensing
Copyright assignment or licensing is the transfer of ownership or permission to use. This is the most common way ownership of copyright rights is handled between a business and an influencer or marketing agency. That relationship is defined by those contract terms, and those terms include how copyright rights will be handled.
An assignment is used when the creator initially owns the copyright, but then transfers all of the ownership rights to the brand in assigned writing, such as a clause in the contract. In marketing service deals, while the creator is still the author, the ownership of the work is assigned through the terms in the service contract to the business who contracted with the marketing agency to have the work done.
A license is used when the creator keeps ownership of the content but grants the other person or business permission to use it under specific conditions. In many influencer deals, the influencer is the default owner and the brand is granted a broad license through the service contract to use the work created by the influencer. The contract may also include restrictions on how the influencer can use the content they own in order to protect the reputation of the brand.
2. Work Made for Hire
This is less common because the rules are strict. There are two ways a copyrighted work can be a work made for hire or work for hire as it’s more commonly known.
The first is when someone is in an employer-employee relationship and the work was created as part of the employee’s regular duties, it’s a work for hire and the employer is legally the author and the owner. The employee has no rights to it.
The second is when the work was ordered or commissioned by someone and it meets strict guidelines. Three things must be true.
- The parties must sign a written agreement.
- The written agreement must explicitly say it is a work made for hire.
- Third, the work must fall into one of the nine specific categories defined in the Copyright Act.
If any of those requirements are missed, the work is not a work made for hire and the creator is still the author and the ownership is decided by the contract.
Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, please book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other posts and pages on my website for more information on intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” (video on YouTube, Spotify, and Substack only) and on most social media as @kingpatentlaw.
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