Copyright Ownership in Freelancers and Commissioned Works – Challenges and Solutions

Imagine an artist creating a commissioned painting for a client. The artist finishes the work, but later, a dispute arises because both the artist and the client believe they own the copyright. This kind of disagreement is more common than you might think, and it underscores the importance of having clarity in copyright ownership. In this blog post, we will explore the complexities of copyright ownership in Freelancers, Commissioned works and works created by employees. This is particularly relevant for those in the creative industries and for legal practitioners drafting contracts that govern ownership of creative output. By understanding these nuances, creators and businesses can avoid disputes and ensure their rights are protected.

Commissioned Works: Who Owns the Copyright?

• Definition of Commissioned Works: A commissioned work is any creative output that is produced on request by someone else, such as a painting, a website, or a piece of music. Under Indian copyright law, the creator of the work retains the copyright unless there is an agreement stating otherwise. This means that even if a person pays for a work to be created, they do not automatically own the copyright to that work.
  
• Default Ownership Rules: The default position under Indian law is that the copyright stays with the creator, regardless of who commissioned the work. This can lead to disputes if the commissioner believes they own the copyright simply because they funded the creation. To prevent such misunderstandings, it is crucial to have a written agreement. Also, the written document is crucial if the work is applied for copyright registration in India.
  
• Importance of Written Agreements: A written contract that clearly outlines the terms of ownership is essential to avoid ambiguity. This agreement can specify whether the copyright is assigned to the commissioner or remains with the creator. The contract is the key instrument in transferring ownership.
  
• Practical Example: Consider a photographer hired to take photos for a company’s marketing campaign. Unless there is an agreement that assigns the copyright to the company, the photographer retains ownership of those images and can control how they are used, even after delivering them to the client.

Joint Works and Joint Authorship

• Definition of Joint Works: Joint works are created by two or more authors who intend for their contributions to be combined into a single, unified work. This could include co-writing a book or composing a song together.
  
• Criteria for Joint Authorship: Under Section 2(z) of the Indian Copyright Act, joint authorship requires both a shared intent to create a unified work and significant contributions from all authors. All contributors must intend that their work will merge to form a single whole.
  
• Ownership and Exploitation Rights: By default, all joint authors share ownership of the work, and each author has the right to exploit it. However, any revenue generated must be shared among all contributors. Without a prior agreement, disputes can arise about how revenue should be divided.
  
• Case Example: Imagine two writers co-authoring a screenplay. If no agreement on ownership exists, disputes might arise about who gets to decide how the screenplay is used or how profits are shared. Clear agreements outlining each contributor’s role and rights can prevent such issues.

Works Created by Employees: Who Owns the Copyright?

• Employment vs. Independent Contractor: There is a significant difference between work created by an employee and that created by an independent contractor. Under Indian law, works created by employees during the course of their employment generally belong to the employer, whereas works created by independent contractors typically belong to the contractor unless otherwise agreed.
  
• Works for Hire Doctrine: The “works for hire” doctrine stipulates that work created by an employee as part of their job duties belongs to the employer. For instance, if a graphic designer employed by a company creates a new logo for a brand, the copyright typically belongs to the company, not the designer.
  
• Case Example: Suppose a software developer, employed by a tech firm, develops a new application during their employment. In this scenario, the tech firm would own the copyright, as the work was produced in the course of employment.

Comparative Analysis: Commissioned Works vs. Employee-Created Works

• Ownership Transfer Mechanisms: In commissioned works, the copyright remains with the creator unless it is assigned through a contract. In contrast, works created by employees are generally owned by the employer from the outset, without the need for a separate assignment.
  
• Role of Contracts: Contracts play a vital role in both scenarios. For commissioned works, a clear assignment clause is essential to transfer copyright to the commissioner. For employee-created works, employment contracts should explicitly state that any work produced in the course of employment belongs to the employer.
  
• Practical Differences for Legal Practitioners: Legal practitioners must draft clauses that clearly define who owns the copyright depending on the nature of the relationship. In cases of independent contractors, a copyright assignment clause is necessary, whereas for employees, a work-for-hire clause is crucial.

Key Case Law on Copyright Ownership

• Najma Heptulla v. Orient Longman Ltd: This case dealt with a commissioned work where the absence of a clear contract led to disputes over ownership. The court emphasized the importance of having written agreements to determine copyright ownership in commissioned works.
  
• Neetu Singh v. Rajiv Saumitra: In this case, disputes arose over ownership in joint authorship. The court examined the intent and contributions of both parties to determine ownership, highlighting the importance of documenting each contributor’s role.
  
• Indian Performing Right Society (IPRS) v. Eastern India Motion Pictures: This case addressed ownership of works created by employees, particularly in the music industry. It reinforced the principle that work created in the course of employment generally belongs to the employer.

Practical Guidance for Legal Practitioners

• Drafting Contracts for Commissioned Works: Contracts for commissioned works should include clear assignment clauses to specify who retains copyright. The contract should also cover usage rights, royalties, and other financial arrangements to prevent future disputes.
  
• Joint Authorship Agreements: When drafting joint authorship agreements, it’s essential to outline contributions, decision-making authority, and revenue-sharing arrangements. This helps manage expectations and prevent conflicts.
  
• Employment Contracts: Employment contracts should explicitly state that any work created during employment belongs to the employer. Including clauses that define the scope of work and exceptions for personal projects can help clarify ownership.

Challenges and Limitations

• Ambiguity in Joint Authorship: One of the main challenges in joint authorship is the lack of clear intent or inadequate documentation. When the intent of the contributors is not explicitly recorded, disputes can easily arise regarding ownership and exploitation rights.
• Freelancers and Commissioned Works: Freelancers often face difficulties in retaining copyright, especially when dealing with larger corporate clients. Clients may demand ownership of the work, leaving freelancers with limited negotiating power.
• Cross-Jurisdictional Issues: When commissioned or joint works involve parties from different jurisdictions, conflicts can arise due to differing copyright laws. In such cases, it is important to consider international copyright rules and draft agreements that clearly define which jurisdiction’s laws will govern the work.

Conclusion

Copyright ownership in commissioned works, joint authorship, and works created by employees can be complex. Understanding the nuances and having clear contractual terms are crucial to avoiding disputes and ensuring all parties understand their rights. The key to preventing disputes over copyright ownership lies in clear contracts that outline each party’s rights and obligations. Legal practitioners play a vital role in drafting these agreements to protect the interests of all involved. Creators, commissioners, and employers should seek expert legal counsel when drafting or signing contracts related to commissioned and joint works. Clarity in contracts ensures that all parties understand their rights and responsibilities, which ultimately protects the value of the creative work.