Don’t Monkey Around With Your Intellectual Property

If a monkey sitting at a typewriter hammers out a top-selling spy novel, who owns the copyright? The monkey? The owner of the typewriter? Or no one? While a similar question in a recent case has the intellectual property world going bananas, the question also raises practical considerations for every business.

In 2011, British wildlife photographer David Slater set up his equipment in Indonesia to snap a few photographs of a crested black macaque. The monkey, apparently impatient with the setup process, grabbed Slater’s camera and with all the finesse of a teenager with an Instagram account, started snapping selfies. One of those selfies ended up in the hands of Wikimedia Commons, which made the photograph available online for everyone to use under the theory that the photograph was in the “public domain.”

Brian Downey
Brian Downey

Slater demanded that the photograph be removed from Wikimedia Commons, claiming that he was the rightful owner of the copyright in the photograph. Under U.S. copyright law, registered works must have a human author. Works created by nature, or in this case, an animal, are not registrable.

A more important consideration for most businesses is that the Copyright Act provides that the creator or “author” of the work automatically owns the work unless there is a written assignment, or it was a “work made for hire.” Wikimedia can argue that, even if registrable, the rightful owner of the photograph copyright is the ape, not Slater. The Copyright Act does not care about who owned the camera, it only cares about who pressed down the shutter button.

While it is highly unlikely that you will have a monkey creating graphics or text, or taking photographs for use in your business, this interesting case does provide some practical pointers that every business should address. Unless you expressly state otherwise in writing, independent contractors own the copyright in work product whenever you hire them to create ad copy, write a software program, take photographs, or produce anything else in a tangible medium. The independent programmer you hired, who sat in your office at your computers and drafted code for use in your business – yes, that programmer owns that code, not you or your company.

Copyright ownership is often counterintuitive to many business owners. Common sense tells you that you should own a commercial if you pay for a marketing firm to create it. The law, as we all know, often lacks common sense. In the copyright world, you do not get what you pay for.

So, what can you do? When you hire independent contractors, always have them sign a work for hire agreement. You have the leverage during the hiring process. Once the materials have been produced and you decide to make further use of them, all leverage is gone and you may find yourself on the wrong end of a copyright infringement lawsuit.

While ownership is always ideal, artists, photographers, and other contractors often either refuse to sign work for hire agreements or demand a far higher fee for the work if they do sign them. Not owning the copyright is not the end of the world as long as you obtain a license from the contractor that is broad enough to permit everything you want to do with the work product. Of course, with any license you will need to put policies in place to ensure that you do not overstep the bounds of license. All too often companies with a limited license to a photograph, say for one time use in a paper catalog, end up with a nasty cease and desist letter for exceeding the scope of the license by, for instance, putting that same photograph in an online catalog. In short, make sure your license covers all of your conceivable future uses.

What about employees? It is also a good practice to have an employment agreement in which the employee agrees that all work product will be work made for hire, or agrees to otherwise assign all work product. The Copyright Act provides that title to a work created within the scope of the employee’s services does vest in the employer. However, creative materials in any organization often come from someone who was just willing to take on the project, rather than someone who was hired to perform such tasks. For this reason, iron-clad agreements are always advisable.

Let’s not forget about unsolicited (or even solicited) submissions. For years the Baltimore Ravens have been fighting off numerous copyright infringement lawsuits brought by Frederick Bouchat, the man who had faxed his idea for the original Ravens logo to the stadium authority long before the Ravens ever took the field. In the case of solicited submissions, you should always have participants agree to express terms as to the ownership and future use of the submission. Never use an unsolicited submission until you have a written agreement with its creator.

While copyright laws may be counterintuitive, they are quite simple to navigate once you understand the basics. Written agreements with both contactors and employees are vital. Rather than focusing entirely on work product and how much it will cost, consider who will own it and how it will be used. Otherwise, you may find yourself having paid for something you can no longer use.