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Outsourcing and Copyright

Posted: Thu Dec 19, 2013 1:21 pm
by fabben
If you pay for someone to write an article or design a logo. Obviously you have the right to use this finished product anyway you choose. But who owns the copyright?

common sense tells me it the copyright owner should be person/organisation that commissions the work. But I appreciate that things are never that simple when it comes to copyright.

I imagine that the international nature of outsourcing complicates everthing even more. For example I (UK based) hire someone in (India based) via elance (US based).

Posted: Thu Dec 19, 2013 3:12 pm
by AndyJ
Hi fabben,
The first owner copyright in the UK, EU and USA is the author of the work, and not the person who commissions it, unless a specific agreement in writing is made by the parties to the contrary. However in virtually every case the person who commissions a work will invartiably have an implicit licence to use the work for the purpose for which it was commissioned. The only case where copyright ownership automatically devolves to someone other than the author is when the author is employed under a contract of employment and the work is created in the course of that employment, when the employer becomes the first owner. Under US law, this exception is known as work-for-hire and includes slightly wider categories (which may include certain commissioned works) under which the employer becomes the first owner. You can find more details about work-for-hire here.

The situation under Indian law is very similar except for commissions of very specific works, namely
a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
Source: Indian Copyright Act 1957 Section 17 (b).

Something similar to this used to exist in UK law prior to the 1956 Copyright Act.

Posted: Thu Dec 19, 2013 4:11 pm
by fabben
I hear the term "Ghost Writer" used a lot, I imagine that this has no bearing on Copyright - copyright laws prevail.

I suppose I owned Apple Inc and I went to Fiverr . com to get a new logo designed (I realise I stretching reality a bit). The person I give the commission to, has copyright and is free to give my logo to anyone they want?

Posted: Fri Dec 20, 2013 10:11 pm
by AndyJ
Hi fabben,
A ghost writer will invariably be working to a contract with a publisher and the contract will specify how copyright and credits are to be dealt with. A ghost writer may get a lump sum fee for the job or a share of the royalties, in exchange for giving up his copyright. Indeed the contract may also include a non-disclosure agreement which bars the real author from revealing his/her role in the book or article. Of course some ghost writers are more like editors, and their role is to take the first draft written by the named person and polish it so that it becomes more saleable. In that instance they would nominally be a joint author.

As for the logo example, something similar would apply when a large company like Apple goes shopping for new branding. They will invariably require the copyright in the logo or other artwork to be signed over to them as part of the commission and the fee paid will reflect this. The next level down from an assignment of copyright is an exclusive licence, which means that the licensee (the client) is the only person who is able to use the logo, and excludes the artist even though the artist retains the copyright. Licences usually have fixed duration after which the artist would then be able to exploit their work again, so it is not really a sensible option for something like a logo which could well become an important asset of the company because it might also be a trade mark. Trade mark law operates in a different manner to copyright and a trade mark would be the intellectual property of the company which registered it in relation to the sale of their goods or services. This would effectively prevent either the artist or another company from using the logo in the course of trade for goods or services which were similar to that of the commissioning company, or for other goods/services where there a likelihood that the public would be confused as to the origin of those goods etc.
In fact the word Apple is a good example of a word mark which can co-exist in two or more similar areas (Apple Computers with its iTunes business and Apple the record label set up by the Beatles, both of which are related to music) because each mark has its own separate identity in the minds of the public, and the courts have held that there was no significant confusion caused and so there was no infringement in that case.