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Who Owns It: Employee, Contractor, Monkey or You

A photographer recently settled a lawsuit brought by PETA over the copyright ownership of a "selfie" taken by a macaque monkey. http://www.npr.org/sections/thetwo-way/2017/09/12/550417823/-animal-rights-advocates-photographer-compromise-over-ownership-of-monkey-selfie.

While the suit itself was nothing more than a publicity stunt by PETA (let's be clear, as much as I like macaque monkeys, animals do not have legal rights to ownership; just ask estate lawyers that need to draft to care for pets after a client's death); it does raise important issues; and reminds companies of the importance of understanding who own what when it comes to intellectual property.

When I teach Entertainment Law classes, one of my main recurring themes is "Chain of Title". Every aspect of a project must be cleared. Immense effort goes into clearance. There are multiple binders of documents to prove clearance for most motion pictures. As production counsel; during the development and production stage, your main role is ensuring clearance.

The same "chain of title" analysis should be applied when you look at your company. You must have someone continuously asking the question "who owns that?"

Nothing in this area of law is easy. You will have "Inventions" agreements with your employees (won't you?); so copyrightable or patentable work done by employees for the company or otherwise performed with company assets belongs to the company (most of the time.) But what about your agreements with contractors? Do they all have the appropriate language? In the last month I've seen 10 agreements with vendors that did not have appropriate "work-for-hire" language.

When an employee pulls something off of the web and incorporates it into your business; did someone review if it can be used that way? I get regular calls from clients that receive form demand letters from Getty because of their use of a copyrighted photo or video without a proper license. Open Source stock photos and footage? Better read the license. The rights can be very limited; or even worse, the license can create a huge burden on your company.

A final example. A client of mine wanted to bottle their new drink. They were about to sign an agreement with a bottler; and at the last minute asked that I review the agreement. Buried in the document was a provision where the bottler claimed ownership of the formula of the drink, and if the client ever went elsewhere to bottle the formula, this bottler would receive a 5% gross royalty as payment for a non-exclusive license.

Who at your company is responsible for asking "who owns that?" Who looks at every agreement with this question in mind? There are very few issues that are harder to correct than a fight over ownership. The effort to avoid these battles is well worth it.