How could this happen?

Recently, Oscar-winning actor and multi-platinum recording artist (with his band, 30 Seconds to Mars), Jared Leto had one of his entities file a copyright infringement action against several defendants, for publishing a video on celebrity news site TMZ.com featuring Leto talking disparagingly about pop star Taylor Swift.

The video was shot by a videographer hired to promote 30 Seconds to Mars.  However, Leto and the videographer never signed a work-for hire or any other contracts before the shoot, to indicate who owned the video.

After the shoot, the videographer contacted TMZ.com and sold them the part of the video where Leto disparaged Taylor Swift.

When Leto’s team found out about this, they tried to fix their lack of ownership predicament.  They had the videographer sign a nondisclosure and copyright transfer contract.  They then registered the video with the U.S. Copyright Office in Leto’s entity’s name and filed their copyright infringement lawsuit two days after TMZ.com first posted the video.

It didn’t work.  They lost.  Why?  Because as I mentioned above, there was no signed work-for hire contract before the videographer began work on the video.  The videographer consequently owned it.  He transferred ownership of the Swift portion of it to TMZ.com upon sale.

The lawsuit claimed that Leto’s entity reached an oral contract with the videographer prior to the shoot, under which the entity owned the video and that the written nondisclosure contract confirmed this.  But, the non-disclosure contract, which Leto’s counsel argued both prevented dissemination of the video by the videographer and transferred copyright to Leto, was signed two days after the sale to TMZ.com.  So, the videographer had no copyright to transfer to Leto.  And don’t forget the video had already publicly aired.  It couldn’t be unwatched.  The damage was done.

It is copyright law 101 that whoever creates an original work owns it.  If they create it with others, they each own an undivided portion of it.  And, despite a popular misconception, it doesn’t matter who paid for its creation.  There are only two exceptions:

  • When the work is created by an employee within the scope of his or her employment, per a signed employment contract with their employer; or,
  • When the work is a certain type of work, created by an independent contractor within the scope of his or her engagement, per a contract signed before services to create that work began, with a party (“Engaging Party”) for whom they’ve been contracted to create that work. The parties must also agree in that contract that the Engaging Party owns that work.  This type of contract is called a “work-for-hire” contract.  An audiovisual work is one type that qualifies for work for hire treatment.

In the former instance, the work is owned by the employer.  In the latter, it’s owned by the Engaging Party.

Not complicated.  Pretty back and white, right?  It consequently always baffles me when such simple protection to assure ownership of a work in the person or entity who contracted for it, is overlooked or not correctly accomplished by those who should know better.

So, if you want to own a creative work you did not create, you need to timely have the proper type of signed contract with the creator(s).  Otherwise, you don’t own it and can’t control it.

Just Sayin’ . . . TM

© 2016 Paul I. Menes

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