Copyrights and Online Marketing
By: Mark J. Rosenberg © 2009
Until recently, copyright law has played a relatively minor role in online marketing. While copyright’s intellectual property cousin trademark law has received significant attention as the law of domain names, paid keywords and metatags developed and continues to develop, copyright law was largely relegated to disputes regarding copied images, website content and code. Now, with the rise of video marketing, copyright law is moving to the forefront.
What is a Copyright and How can It be Infringed?
A copyright can exist “in all original works of authorship fixed in any tangible medium of expression.” This includes literary works such as articles and website content, musical works such as a recording of a song, pictorial works such as photographs, and audiovisual works such as a web video. Owners of copyrighted works possess the exclusive right to make reproductions of their works, distribute copies of their works and publicly display them. A copyright is infringed when any of these exclusive rights is violated, regardless of whether the copyright is registered with the United States Copyright Office. For example, if an online marketer, without permission, uses a song downloaded from iTunes as background music in a video or copies a photograph from another website, that use is likely a copyright infringement. Just as in the brick and mortar world, if a marketer is going to use another’s copyrighted work, the marketer needs to obtain the copyright owner’s permission before the work is used. And in the case of music, that includes the various owners of the copyrights in the song’s sheet music and the recording.
Owning the Copyright
While the concept of copyright infringement is familiar to most online marketers, the concept of copyright ownership is not. This issue can arise the moment the marketer begins developing its website. Contrary to popular belief, the person or entity who pays some one to create a work does not necessarily own the copyright in that work. Instead, in many cases, the person who actually creates the work is considered the work’s author and the owner of its copyright. Because of this, when an online marketer retains a website developer to create the marketer’s website, the developer is considered the author of the website and owns the copyright in it. Similarly, if a marketer hires a person to write an article, the writer owns the copyright in the article.
In video marketing, the issue of copyright ownership is of critical importance. That is because everyone involved in the creation of the video – including the script writer, the director and the production crew – potentially owns a portion of the copyright in the finished video. If the marketer does not secure ownership of the entire copyright, any of these persons could be deemed an author of the work who possesses a copyright interest. These individuals could have the legal right to determine how the video is used and require additional compensation.
Use a Work for Hire Agreement
Copyright ownership issues can be avoided by what is known as a work for hire agreement. These agreements are written contracts – and they must be written – between the entity which commissions the work and the person who performs the work. These agreements must identify the work being performed and specifically state that the work is being performed on a work for hire basis. The result of a work for hire agreement is that the marketer who commissions the creation of a video or any other work is legally deemed the author of the work and the owner of the entire copyright in it. Because of this, all persons whom the online marketer or its agents hire to create a video – including all production staff, write an article, design a website, write code or create any potentially copyrightable work should be required to sign a work for hire agreement before he or she commences work on the project. While website developers who own rights in the building blocks for a website design may be reluctant to sign such contracts, the website owner should, at a minimum, end up owning the copyright in all elements of the website which the developer creates for the owner.
Even if a website, video or article is created in-house, it is good practice to have the employees performing the work sign a work for hire agreement. Although a work created by an employee within the scope of his or her employment is automatically deemed a work made for hire, disputes often arise as to what constitutes the scope of an employee’s employment. Without a work for hire agreement, if an employee creates a work that is outside of the employee’s scope of employment, i.e., an employee who does not usually write articles writes an article for the marketer, the employee would own the copyright in the work.
Don’t Forget the Right of Publicity
Finally, on a related note, when people appear in a video, their right of publicity is implicated. This right pertains to an individual’s ability to control, among other things, how his or her name, likeness and voice are used. Each person appearing in a video must sign a release granting the online marketer the right to use that person’s name, likeness, image, etc. in connection with the recording, display and distribution of the video. And, in the case of minors, the minor’s parent or guardian must sign the release as well. While online marketers will often use employees, family and friends who volunteer to be the marketer’s video, it is prudent for marketers to have everyone appearing in the video sign the release. That way, if an actor has a change of heart after the video is taped or after it begins to be displayed, the marketer is protected.
By obtaining prior permission to use copyrighted materials, and by using work for hire agreements and publicity releases, online marketers will avoid many of the legal issues raised by video marking.
About the Author: Mark J. Rosenberg is Of Counsel to Sills Cummis & Gross P.C.’s Intellectual Property Practice Group and is resident in the Firm’s New York office. A significant part of his practice focuses on legal issues pertaining to ecommerce.
(Image Credit: iStock Photo)
This article is for information purposes only. It is not intended to be and should not be relied on as legal advice for any particular matter.