Have you ever commissioned a photoshoot for that special occasion, or created copyright works in the course of your employment? Considering these scenarios, who really owns the copyright? In this article, we will discuss copyright ownership, and try to debunk certain fallacies, particularly in relation to commissioned works, and works created in the course of employment.
Lights, camera, action: Commissioned works
The Copyright Act (the “Act”) provides no concept of “commissioned works” or “work for hire” in Jamaica. What this means, is that the copyright in a work created by a contractor will be owned by the contractor, unless there is an agreement to the contrary between the contracting parties. To give an example, when you organise that birthday photoshoot, or your wedding photos, unless the contract with the photographer stipulates that the ownership of the copyright in the photos is to pass from the photographer, it is the photographer who owns the copyright, and can exercise, in relation to those photos, all the exclusive rights granted by copyright ownership, including publication and copying. This contrasts with what obtains in the United States of America (“US”), which persons may be familiar with, and think applies in Jamaica, but which does not. In the US, the copyright legislation specifically provides for “works for hire”, which means that, when a person hires a contractor, the hirer is the author and owner of the copyright in the work, and not the contractor. It should be noted that the only exception in Jamaica is where the hirer is the Government of Jamaica (GOJ). In relation to works commissioned by the GOJ, the GOJ is the author and owner of the copyright in the works.
Given the position in Jamaica, what is necessary to ensure that the copyright in the work is owned by the person who engaged the contractor, or commissioned the work? The answer is simply to ensure that there is an agreement or contract, in writing, between the hirer and the contractor, that specifically assigns the copyright in the work to the hirer. This is particularly important because, generally, where a person engages and pays for the services of a contractor, there is a certain expectation that the product of the engagement will belong to the client, and that the client will be able to use the product in whatever way he/she desires. Without an agreement or contract, as previously discussed, this will not legally be the case. Therefore, as the hirer/client, it is important to get the explicit assignment of the copyright through the contract that will govern the relationship with the contractor.
On the job: Contracts must assign copyright
Under the Act, the copyright in works created by an employee, in the course of his/her employment does not, without specific assignment, belong to the employer. Therefore, unless there is an agreement with an employee, or an employee’s contract specifically states that the ownership of copyright in works created in the course of the employment should vest with the employer, it will not. This follows from the general principle of copyright law, which dictates that, without some agreement to the contrary, the author of a copyright work is also the first owner of the copyright. Looking at what obtains elsewhere, such as in the United Kingdom, where the copyright in works created by employees automatically vests in the employer, Jamaican employers should not be confused, and should not fall into the trap that the copyright in works created by employees will automatically vest in them, as this is not the case.
Since there is no exception in Jamaica for works created in the “course of employment”, how can employers ensure that the copyright in their employees’ works passes to them? It is all about contracts. An employer must ensure that its employment contracts specifically dictate that the copyright from employee-created works is assigned to the employer, and where the employment contract does not contain such assignment clauses, that other agreements are made with the employee speaking to the ownership of the copyright in works created by the employee. This may be of specific importance to an employer where the employee utilises the employer’s resources and time to create the copyright work.
Surely, it is important to know clearly, who owns the copyright in a work. For a person engaging a contractor, it must be noted that, without an agreement assigning the copyright to the hirer, it will not be the hirer who owns the copyright in the product of the engagement, notwithstanding any payment to the contractor, or any feelings of entitlement. Similarly, for employers, without clear terms in the employment contract, or any other contract with the employee, assigning the copyright in works, the copyright belongs to the employee, notwithstanding the employee being paid, the employee’s use of the employer’s time and resources, or the employer’s feelings of entitlement. It cannot, therefore, be emphasised more, in relation to contractor and employee works, the value of having agreements in place, that resolve the “is it me, or is it you?” question of copyright ownership.
