Who Owns Your Company’s Marketing Content?

Who Owns Your Company’s Marketing Content?

As a software copyright attorney, I realize a lot of the new way of marketing is based on becoming a publisher, but some people may not realize that there are important copyright issues in play here, which should be thought through, as they may be counter intuitive.

General Rule – The Creator Owns the Content. The general rule under copyright law is the one who creates the content, owns the content. This is a pretty basic copyright concept, but under closer scrutiny, an interesting issue comes to light when outsourcing content creation.

Exception – Work Made For Hire.

  • Content Created by Employees. There is an exception to this general rule, which provides that employees who create content within their scope of employment automatically provide ownership to that content to their employers (i.e. work made for hire), without having to address it in a contract (although IP agreements employees sign when starting work usually clarify this copyright ownership issue).
  • Outsourced Content Creation. Here is where it gets more interesting, or fun if you are an attorney. Outsourced content creators (i.e. independent contractors) own the content they create/provide, even though they are fully compensated for the work. This means that the outsourced content creator could (a) sell the content to someone else, or (b) re-use it in another way (remember, they ‘own’ it, and the company that paid for it receives an implied non-exclusive license). This same outcome occurs when hiring an outsourced software developer, architect or professional photographer, so it is really not a new issue at all. The easy way to avoid this problem all together is to designate the services as ‘work made for hire’ in a contract, and along with a lot of other important legal words, transfer the ownership to the company that paid for the content.

Resources. There are many helpful resources on content ownership issues, so take a look at some of these links:

Every software company should read their content outsourcing contracts closely (and discuss it with their attorney) to understand what rights they acquire and what rights the creator retains. This issue is too often forgotten and is not intuitive at all, so keep it in mind!
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