Copyright is a bundle of rights in a creative work such as a book, poem, photo or painting. It protects the expression of the work itself, not the idea. If you are a content creator, you have likely asked, “who owns my copyright?” Perhaps you have conducted an interview or created an animation using Adobe. Typically, the author of a work or the person who brought it into existence is the copyright owner. However, as with most legal concepts, there are exceptions.
Who Owns Copyright in a Work?
The creator of a work automatically owns the copyright (the “author”) so even if you have a very good idea, you won’t be the owner unless you bring it to life. For example, a photographer owns the copyright of a photo – not the subject or the creative team who decided its composition (subject to the exceptions set out below).
What are the Exceptions?
- Commissioned works: If someone commissions (i.e. pays another person to create a work for a domestic or private purpose), then the person who commissions the work is the automatic owner of the copyright (section 35(5) of the Copyright Act 1968 (Cth) (the Act)).
- Copyright created while employed: If an employee creates a work during their employment, the copyright in that work will pass to the employer (section 35(6) of the Act).
- Works created for the government: If a work is created under the control of a government or state agency, then copyright in that work passes to that agency or entity.
Social Media
Law turtles behind technology, and in a digital age, there are some murky waters when deciding who owns the copyright. On social media, you generally retain ownership of the content you post to the platform. However, in doing so, you grant a licence to the platform to use your content in some way. Instagram, Twitter and Facebook’s terms of service will set out any limitations on your right to use your content.
Interviews
Who owns the copyright in interviews will largely depend on the following:
- Who constructed the questions?
- Was the interview taped or recorded?
- What degree did the interviewer gild the original story?
Depending on these factors, there may be situations where both the interviewer and interviewee own the copyright, based on their contributions.
Donoghue v Allied Newspapers [1938] Ch 106
In this English court case, a journalist paid the jockey (Donoghue) to relay his life story so that he could write a series of articles. The journalist re-used the articles, without further payment to Donoghue. Donoghue promptly sued, stating that he should be seen as part-owner of the copyright in the articles. You can see his perspective – the articles were about Donoghue’s life, so they had to be his.
The Court did not take this view and found that Donoghue did not own the copyright in the articles. If the journalist had substantially reproduced Donoghue’s own words or had copied them word-for-word in the articles, then Donoghue may have been able to claim copyright. As Donoghue had only supplied the idea for the articles, he wasn’t the author of the article and therefore not its copyright owner.
Sound Recordings
Australian copyright protects sound recordings and usually, whoever makes a recording owns the copyright. If you are giving a talk in a public forum, it might be a good idea to reduce your ideas into powerpoint slides, so it is clear that copyright in the slides, at least, belongs to you.
Computer Aided Works
The law has kept up with technology in situations where works are created with the aid of computers. Even if a piece of software were used in the creative process, the person would still own the end product (so long as the process was not entirely automated).
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The author of an original work is generally the copyright owner, although there are situations where ownership is unclear, including interviews, sound recordings or social media postings. In these situations, factors such as whether the journalist crafted the questions may play a part in determining who owns copyright. If you have any questions about how to best protect your creative works, get in touch with out IP lawyers on 1300 544 755.
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