ExampleCommissioned photography
When a photographer is commissioned to take photographs of a band for promotional purposes, the photographer owns the copyright unless there is an agreement to the contrary.
Intellectual Property in Commercial Settings
Commissioned works: Exceptions to the general rules
Ownership of copyright in commissioned works
Copyright
The Cambridge Dictionary meaning of ‘commissioned’ is:
For example, someone could commission a building, a piece of equipment or a work of art.
In copyright law, there are different ownership rules for some types of ‘commissioned works’. Let us see how it works for different types of copyrightable works.
Photographs and portraits (whether drawings, paintings or engravings)
Where a photograph or portrait is commissioned:
(a) for valuable consideration (i.e. payment); and
(b) for a private or domestic purpose,
then the person who owns copyright in the photograph or portrait is the person who commissioned it, not the photographer. So, for example, where a photograph is for a private purpose such as a family portrait, the client automatically owns the photograph unless there is an agreement to the contrary.
This rule does not apply to photographs or portraits commissioned for commercial purposes, such as advertising or business use. In these circumstances, the photographer remains the owner of copyright.
Did you know?
Because of this rule about commissioned photographs, wedding and portrait photographers will often try to manage ownership and access to the photographs they take either through contract or by controlling physical access to the photographs and negatives. Altering ownership rights via contract is known as an assignment and is discussed further below.
Literary or musical works
Ownership of commissioned literary or musical works automatically sits with the creator of such works unless there is an agreement to the contrary. In other words, without a written agreement to the contrary, paying someone to write a literary or musical work does not change the general rule that the author owns copyright.
Films
As explained at the start of this topic, copyright in a film is automatically owned by the person or company that makes the necessary arrangement for the making of such work.
- The Copyright Act states that where a person (let’s call him Greg) makes, for a fee, an agreement with another person (let’s call her Susan) for that person (Susan) to make a cinematograph film, then the first person (Greg) owns the copyright in the film. This generally accords with standard practice in the film industry. The person who supplies the funds for making a movie is usually known as the film producer. In the example above, Greg is the film producer. The film producer is the copyright owner.
- Where the film is not commissioned via an agreement for valuable consideration, then the director(s) of a film will also own copyright in the film. Where there are several producers and directors, then they may own copyright together.
Sound recordings
As with films, where a person enters into an agreement with another person to make a sound recording for a fee, then the first person will own copyright. Returning to Greg and Susan: if Greg pays Susan to make a sound recording, then Greg will own that sound recording.
Remember that there are different layers of copyright:
- A single object may have different ‘layers’ of copyright. Thus, while a music producer or record company may own copyright in the sound recording of a song, they will not own copyright in the underlying musical work. The composer will own copyright in the musical composition and the lyricist will own copyright in the lyrics as a literary work. The composer and lyricist will own copyright as the original authors of these works.
- A music producer will only own copyright in all aspects of a song (i.e. the song recording, the musical composition and the lyrics) if the copyright is assigned (legally transferred) to him or her.