Who Owns Your Company’s Marketing Content?

Short answer: under copyright law, whoever creates content owns it, so when you outsource your marketing content the freelancer owns it, not you, unless your contract says otherwise in writing. Marketing content copyright does not transfer just because you paid the invoice.

Marketing is increasingly about becoming a publisher. You are producing blog posts, photos, videos, landing pages, and logos at a steady clip. Most software companies do not realize there are real copyright issues baked into all of that content, and the rules are counter-intuitive. (I see this trip up vendors constantly, usually long after the content was paid for and posted.)

General Rule: The Creator Owns the Content.

Under copyright law, whoever creates the content owns the content. That is the default, and it is a basic concept. It gets interesting, and expensive, the moment you outsource content creation.

Exception: Work Made for Hire.

• Content created by employees. When an employee creates content within the scope of employment, it is automatically a work made for hire and the employer owns it, with no separate contract required. The IP assignment your team signs at hiring usually confirms this in writing, which is still worth doing.
• Outsourced content creation. An independent contractor (a freelance writer, designer, developer, or photographer) owns the content they create, even though you paid them in full. They could turn around and (a) license the same work to someone else, or (b) reuse it themselves. You get only an implied, non-exclusive license to use what you paid for. The same trap applies to outsourced software developers, web designers, and professional photographers. The fix: in the contract, designate the work as a “work made for hire” and, just as important, include an outright assignment of all copyright to your company.

Why “Work Made for Hire” Alone Is Not Enough.

Here is the part that surprises people. For an independent contractor, Section 101 of the Copyright Act treats a commissioned piece as a “work made for hire” only if it falls into one of nine narrow statutory categories (things like a contribution to a collective work, an audiovisual work, a translation, or an instructional text). A lot of ordinary marketing output, like a logo, a standalone photo, or a block of website copy, does not cleanly fit any of those categories. The U.S. Copyright Office walks through the rules in Circular 30, Works Made for Hire. So if your contract just says “work made for hire” and stops there, you can still end up not owning the logo you paid a designer to create. That is why a careful contract uses both moves: it calls the work a work made for hire and separately assigns the copyright outright, so ownership transfers to you either way.

What to Put in Your Contracts.

Every software company should read its content and design contracts closely before signing, not after a dispute. At a minimum, get a present assignment of copyright (“Contractor hereby assigns…”), confirm there are no third-party or stock-asset restrictions buried in the deliverable, and address moral rights where they matter. This is the same ownership discipline you should already apply to your code (see 5 Things to Remember in Your Software Development Agreement), and it rests on the same body of law you use to protect the product itself (4 Things to Remember About Copyright Law).

Marketing Content Copyright FAQs.

Does paying for content transfer the copyright? No. Payment buys you, at most, an implied non-exclusive license to use the work. Ownership transfers only through a written work made for hire designation (where the statute allows it) or a written assignment.

Can you fix ownership after the content is delivered? Yes, with a written assignment signed by the contractor. But you are negotiating from a weaker position once the work is done, so handle it in the original contract.

What about content your marketing agency subcontracts? Same chain-of-title problem one level down. Your agency cannot assign you rights it never obtained from its own freelancers, so require the agency to secure assignments from everyone who touches the work.

This issue is too often forgotten because it is not intuitive. Fix it at the contract stage and you never have to think about it again. Trust me on this one.

For the foundational frame on the four IP regimes that protect software businesses, see Intellectual Property Basics for Software Companies.

Resources:

• 4 Things to Remember About Copyright Law
• 4 Great Reasons to Register Your Software for Copyright Protection
• Copyright Issues: SaaS Software
• Intellectual Property Basics for Software Companies

Disclaimer:

This post is for informational and educational purposes only, and is not legal advice. You should hire an attorney if you need legal advice, which should be provided only after review of all relevant facts and applicable law.