A training company films forty lessons with a freelance videographer and a dozen guest experts. A year later a competitor posts three of the lessons, and the company's lawyer asks who owns them. Nobody signed anything. The videographer still has the raw footage, and one of the experts has started selling the same talk on her own site.
The short answer: the business owns a commissioned video only if the people who made it were employees, or signed a work-made-for-hire agreement or an assignment. Video is easier to paper than software, because the statute allows a work-made-for-hire agreement for it. The agreement still has to exist, and it should be signed before the camera rolls.
Who is the author of a video?
A video is an "audiovisual work" under the Copyright Act, and the author is whoever contributed the original expression fixed in it: the camera work, the direction, the editing. 17 U.S.C. § 101; 17 U.S.C. § 201(a). For a small production, that's usually the videographer and the editor. The business that ordered and paid for the video isn't an author unless a rule makes it one.
Video can be a work made for hire. Software usually can't.
A work by an independent contractor is a work made for hire only if it fits one of nine statutory categories and the parties "expressly agree in a written instrument signed by them" that it is. 17 U.S.C. § 101. One of the nine is a work commissioned "as a part of a motion picture or other audiovisual work."
So a signed work-made-for-hire agreement with a videographer, editor, animator, or scriptwriter can make the business the author from the start. The consequences:
- The business is the author and the owner. § 201(b).
- No termination right. An author can terminate an assignment decades later under § 203. That right doesn't apply to works made for hire.
- Registration is simpler. The business is the author on the application, which matters for some group registration options.
Sign before the work is made
The statute doesn't say when the writing has to be signed, and the circuits disagree.
- The Seventh Circuit requires the writing before the work is created. Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992).
- The Second Circuit has allowed a later writing that confirms an agreement the parties actually reached before creation. Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995).
The safe practice is the same everywhere: sign before production. And always add a backup assignment clause ("to the extent the work is not a work made for hire, Contractor hereby assigns all rights to Company"). If the work-made-for-hire clause fails, the assignment still transfers ownership.
No paperwork: an implied license, and nothing more
Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) is the classic case. A filmmaker commissioned special-effects footage, used it, and never got a written transfer. The court held that the effects company still owned the copyright. The filmmaker had an implied nonexclusive license to use the footage in the film, because a transfer of ownership has to be in writing under 17 U.S.C. § 204(a).
A nonexclusive license lets you keep using the video. It doesn't let you stop the videographer from reusing the footage, and it doesn't let you sue a copier.
What presenters, actors, and directors own
A performance alone usually isn't a separate copyright. In Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc), an actress claimed a copyright in her five-second performance in a film. The en banc Ninth Circuit rejected the claim. Treating each performance as its own work would splinter a film into as many copyrights as it has contributors.
A director's contribution isn't a separate work either. In 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2d Cir. 2015), a director who never signed his work-made-for-hire agreement claimed to own his direction of the film. The Second Circuit held that a contribution to a film that is inseparable from the whole isn't itself a copyrightable work, and that the production company owned the film.
Co-authorship takes more than a valuable contribution. In Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000), a consultant who made substantial creative contributions to a film wasn't a joint author, because he didn't have control over the work and the parties never intended to share authorship.
Those cases help the producer. They don't remove the need for paper, for two reasons.
First, the guest expert's own material. An expert who writes a talk, a script, or a slide deck owns that underlying work. Your video of the talk is a derivative work that uses it. Without a license or an assignment, you can't safely distribute the video, and the expert is free to record the same talk for someone else.
Second, the right of publicity. Using a person's name, image, and voice in a commercial product generally requires consent under state law. A copyright assignment doesn't cover it. You need a release.
Material you can't own
- Stock footage and stock music are licensed, not owned. Read the license for limits on paid products, audience size, and term.
- Clips from other people's films or broadcasts need a license or a fair use analysis.
- A video an expert produced and gave you belongs to the expert. You have whatever license the expert granted, ideally in writing.
Leave all of this out of your claim when you register the video.
What a production file should contain
| Contributor | Document |
|---|---|
| Videographer, editor, animator, scriptwriter | Work-made-for-hire agreement with a backup assignment, signed before production |
| On-camera presenter or actor | Appearance release covering name, image, and voice, plus work-for-hire and assignment language for anything they wrote |
| Guest expert who wrote the talk | Assignment or license of the talk and slides, plus an appearance release |
| Stock footage and music | The license and the receipt |
| Employees | Nothing more is required, but keep proof of employment and job scope |
Practical takeaways
- Paying for a video gets you a license to use it. Ownership takes a signed work-made-for-hire agreement or an assignment.
- Sign before production starts, and include the backup assignment.
- Get a release from every person who appears, and a license or assignment from every person who wrote what they said.
- Fix old gaps with confirmatory assignments now. They get harder to obtain once a video is making money or a dispute has started.
If you're building a video library and want the paperwork right before you register or license it, I'm glad to help.
Primary authority
- 17 U.S.C. § 101 (audiovisual work; work made for hire); § 201; § 204(a).
- Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990).
- Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc).
- 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2d Cir. 2015).
- Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000).
- Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992); Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995).
Related resources
- Work made for hire determination checklist
- Copyright ownership, joint authorship, and termination of transfers
- Right of publicity toolkit
- Copyright licensing and clearance toolkit
- Who owns the code your developer wrote?
- Copyright registration of videos and online courses
This article provides general information and is not legal advice. Copyright Office practices and fees change, and the law varies by circuit; confirm current requirements at copyright.gov and consult qualified counsel about your situation.
