Pictures on your Phone – Who Owns the Copyright?

No Pants 2015 Photo by Devon Christopher Adams, used with permission

No Pants 2015 – Photo by Devon Christopher Adams, used with permission

Here’s the scenario: You’re out to dinner with a group of friends. You ask your server to take a picture of your group with your phone. Your server obliges. The image is on your device; but who owns the copyright – you, the server, or the restaurant?

To get a copyright, you need an original work of authorship that is fixed in a tangible medium. Taking a photograph of a group of people constitutes an original work fixed in a tangible medium, even when it’s just a digital file on your phone. The copyright holder has the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. This person has these rights the moment a work is created – they don’t have to register their work with the U.S. Copyright Office to obtain these rights.

Given this information, who owns the copyright in this situation?

Is it You?
You orchestrated the photo and it’s on your phone. You may be the only one who can physically copy, distribute, and use the photo – at least in regards to the first time it appears away from your device. I can’t say for certain that the law would say you’re the copyright holder since you didn’t physically push the button to create the photo, it’s unlikely that anyone would challenge you for copyright rights.

Is it the Server?
If it wasn’t for the server, this photo as it is wouldn’t exist. From that perspective, the server could argue that he/she owns the copyright since he/she pushed the button that created the image.

Is it the Restaurant?
If your job involves creating intellectual property, your employer is the author and owner of all the intellectual property you create while performing your job tasks. However, a server’s job isn’t to create intellectual property; their job is serving food and providing customer service. The restaurant probably doesn’t have any claim to the copyright in the image.

A restaurant may have policy on their social media profiles or posted in the restaurant that says you grant them a license to use any content you post about them. If you post the image online, they may be able to use the image without asking for additional permission, but they still don’t own the copyright.

So who’s the copyright holder – the server or the person who owns the camera? I’m not sure. I’d have to evaluate the specific facts of the situation. But here’s my question: does it matter? What is the likelihood that there are going to be problems related to this image? Will the server ever see or care if you post the photo? Probably not. And even if they do, I suspect he/she won’t care.

Copyright is a complicated issue, especially when it involves the internet. If you want to chat more about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Highlights on Copyright & Publishing from the Indie Author Conference

Rockin' my Magic Red Chucks at the Changing Hands Indie Author Conference - Photo by Jeff Moriarty (used with permission)

Rockin’ my Magic Red Chucks at the Changing Hands Indie Author Conference – Photo by Jeff Moriarty (used with permission)

I had the pleasure of speaking at the Changing Hands Indie Author Conference over the weekend. It was a day packed with sessions for indie authors and aspiring indie authors on how to publish and market a book. I did two sessions called “Legally Speaking” on how copyright applies to book writers. Here are the top 10 highlights from my presentation and the audience’s questions.

1. You have copyright rights in your work the moment your ideas are captured in any tangible medium (paper, computer file, etc.). You still have your rights even if you forget to put a copyright notice in your book.

2. Having a copyright gives you the exclusive right to copy, display, distribute, perform, and make derivative works based on your work. These rights last for the duration of your life, plus 70 years if your work was created after January 1, 1978.

Close-up of my Magic Red Chucks - photo by Pam Slim (used with permission)

Close-up of my Magic Red Chucks – photo by Pam Slim (used with permission)

3. You don’t have to register your copyright with the U.S. Copyright Office to get your rights. You do have to register if you want to sue for infringement.

4. You should submit you application to register the copyright in your book before you make it available for sale.

5. If you live in a community property state (like Arizona), copyrights acquired during the marriage are community property unless you have a prenuptial agreement or spousal agreement that states otherwise.

6. Make sure you understand the difference between a copyright assignment and a copyright license. In the former, you give away your copyright rights; in the latter you retain copyright ownership but grant someone permission to use some of your rights.

7. If you are incorporating other works, characters from existing works, or trademarked products, consult an attorney to make sure you understand what legal risks you’re taking with your project.

8. You will need works made for hire contracts or copyright assignments for artists who contribute to your book (i.e., illustrations, graphics, forward or afterward by another writer, cover art) to give you the copyright in what they create. Consider adding a provision to the contract that states the contributor indemnifies you if you’re accused of copyright infringement because of their contribution.

9. When you create a budget for your book, plan to pay for a lawyer for a few hours to draft or review your contracts. Use a copyright lawyer, not your lawyer buddy who specializes in personal injury law.

10. If you have a publisher, read your contracts carefully to make sure you understand what rights you’re giving up (if any) and how and when you’ll be paid. Don’t sign anything you don’t understand because you’ll probably be stuck with the contract as long as it’s not illegal. Never be afraid to ask for clarification.

If you want to chat more about this topic, please can connected with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How Work Made for Hire Contracts Work

Photographer Devon Christopher Adams at Ignite Phoenix #10, photo by Joseph Abburscato used with permission

Photographer Devon Christopher Adams at Ignite Phoenix #10, photo by Joseph Abburscato used with permission

If you have ever hired a third party to do photography, video work, web design, graphic design, or to create website or marketing materials for your company, you should check your contracts. If you didn’t draft it correctly, there’s a good chance you don’t own the copyright in what they created.

When you hire a freelancer or a company to create this type of content for you, you need a work made for hire contract. This contract should state that the person being hired is a contractor (not an employee) that they are being hired to create a works made for hire, and that you will own the copyright in everything they create under the terms of the contract. This contract needs to be in writing and signed before the contractor begins work on your project.

If you don’t do this, you will not own the copyright in the work. You will only have an implied license to use the work in ways specified in your verbal or written agreement. The contractor will still own the copyright in the work. If you repurpose the work in another way without the contractor’s permission, there’s a chance that you will be infringing on the contractor’s copyright. The contractor could sue you for copyright infringement or force you to buy another license to use the work. They could offer to sell you the copyright in the content too, which basically means, from your perspective, you’ll have to pay for the same work twice.

I work with companies and freelancers on both sides of this issue. I encourage companies to make sure they have a proper works made for hire in place with their contractors and to not let their contractors lift a finger until that contract is signed. I often suggest that they have provision in their contracts that states the contractor will indemnify the company against any infringement claims made against the company because of the contractor’s work. The company should make the contractor cover the attorneys’ fees and any damages if it turns out the contractor ripped off someone else’s work instead of creating the work themselves.

On the flip side, I frequently write contract templates for freelancers to ensure that they understand what rights they are retaining and which ones they are giving up. Many freelancers want contracts that give the hiring party the copyright in their work and that also give the freelancer a license to put a copy of their work in their portfolio so they can use it to obtain other jobs.  Without this license, the contractor can’t use their work in any way without risking violating the copyright that the company now owns, even though they created it.

If you are a freelancer or a company who hires third parties to create content, please contact a copyright attorney to make sure your rights and interests are protected by the terms of your contracts. You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.

You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.