YouTubers tend to vlog from just about anywhere. That led me to thinking. What happens when a YouTuber films while working? Who owns the video? Who has the copyrights?
Lior Leser, Esq.
Technology, Internet and Software Law
The seminal case in this matter is a Supreme Court decision from 1989 called Community for Creative Non-Violence v. Reed. Yes long before there ever was a YouTube.
This case setup some of the basic principles that YouTubers need to consider. It asks the question: When is a creative work considered a Work-for-hire?
Why is this important?
If your video is considered Made-for-Hire, then your employer is legally the author and not you.
When does this becomes an issue? I can see 3 basic situations.
1. You are an independent YouTuber asked to incorporate a company’s product into your video (a sponsorship).
2. You are an independent YouTuber asked to develop a promotional video for a company
3. You are an independent YouTuber working part-time or full-time for another company.
The answer to this question all depends on whether under federal law, you are considered an employee or independent contractor of the Employer.
If you are considered an employee and you produced the video within the scope of your employment, then the video will be considered Made-for-Hire and therefore owned by the Employer
If you are considered an Independent Contractor, the video will be owned by you, the producer, unless you agreed otherwise in writing.
So this determination, employee vs independent contractor, is very important. How does the law decide the issue.
There are many variables that go into deciding whether or not you are an employee or independent contractor under federal law. But at its heart this is a question of control. Not can a Company control, but did the Company actually control you and your video.
– [ ] How much control does the employer have over your video
– [ ] How much control does the employer have over you. For example, does he control your schedule
– [ ] Is the employee in the business of creating such videos.
So let’s look at the different situations we face.
ONE. You are an independent YouTuber asked to incorporate a company’s product into your video (a sponsorship). In this case, you are not directly employed by the Company. The Company does not control your work schedule. The company does not provide you with film and editing equipment. Generally under these circumstances, the Company may at best exert some limited control over the final video. But generally not. In this case, you would be considered an Independent contractor and the video produced (incorporating the Company’s product) will be owned by you.
TWO. You are an independent YouTuber asked to develop a promotional video for a company. In this case, you are still not employed by the Company. The Company does not control your work schedule. The company does not provide you with film and editing equipment. However, usually the Company does exert more direct control over the video. After all they are paying for a final product. So … does that exertion of control change the ownership of the video. According to prior cases … NO. Exertion of control over the final product is not sufficient. You are still an independent contractor and absent a written agreement, the resulting video is yours.
THREE. You are an independent YouTuber working part-time or full-time for another company. In this case, you are working for a Company and recording videos. Here its gets really muddled. Your are clearly an employee, but are you employed for the purpose of creating videos for the Company? Your scheduled is controlled by the Company, but are you working outside of the work hours? The Company exerts control over your work product but are they controlling the videos too? The answers gets very difficult. Don’t assume that just because you are filming while on break or after hours that the Company does not have ownership claims. Why? Many of us, continue to work every after hours to meet deadlines or to advance at work.
So how do you figure this out. You don’t. You draft a simple agreement that you get your employer to sign that says that you are producing videos for your own purposes and not under contract wit the Company. Failing to do that will place all your hard work in jeopardy. The Company may claim ownership rights and even claim a share of any revenues.
Guess what … even if it determined that you are an independent contractor with respect to the videos, the Company may still claim some “JOINT” ownership in them. This would require some proof of intent.
So what do you do? Always. Always. Get a contract signed saying that the videos are yours. That they are not “Made-for-Hire”. This are the keys words.
Always protect yourself.