Ownership of copyright

The default position is that the author is the owner of the copyright. Look at the table in International copyright to see who the author of each different kind of work is.

In all cases, the author can be a human being. In a few cases, the author can be a corporate entity; for example, a corporation can be a broadcaster, or responsible for producing a film. It depends on the kind of work.

Read section 21(1)(a) of the Copyright Act.

However, sometimes there is confusion (often about the concept of ‘work for hire’) and that is probably because there are several exceptions to this default position. They are listed below.

Ownership: newspaper and magazine employees

Where a literary work (e.g. an article or interview) or an artistic work (e.g. cartoon, photograph, sketch, diagram) is made:

in the course of the author’s employment (under a contract of service or apprenticeship) with a newspaper or magazine; and
for publication in a newspaper or magazine (or similar),

then the proprietor of the newspaper or magazine is the owner of the copyright.

This ownership is only insofar as publication in a newspaper or magazine or similar periodical is concerned. In other words, the journalist loses her copyright to the employer in the employer’s area of operation. Therefore it would be in order for a journalist to publish a book of her interviews with famous sportsmen that appeared on the back page of her employer’s newspaper. This is the journalist’s copyright. Similarly, the newspaper cartoonist who holds an exhibition at a local art gallery of his cartoons of politicians, to sell prints.

Read section 21(1)(b) of the Copyright Act.

Ownership: commissioned works

If ‘A’ commissions ‘B’ to create a work and pays for it (or agrees to pay for it), then ‘A’ — the person who commissions — is the owner of the copyright. However, this relates only to a few specific situations:

taking a photograph;
painting a portrait — note, not any painting, only a portrait;
drawing a portrait;
making a gravure — this is an etching in a metal plate, reproducing a photograph;
making a cinematograph film; and
making a sound recording.

Read section 21(1)(c) of the Copyright Act.

Examples

Your nephew contracts a photographer to come to his wedding and pays for the photographer’s services. The photographer’s commission is to take photographs of the bridal couple and the wedding in general. The copyright in those photographs belongs to your nephew.
Whilst going back to his car, the photographer spots a kingfisher hovering over a dam near the wedding venue. He takes a prize-winning photograph of the bird hitting the water, beak first. The photograph was not commissioned, and the photographer is therefore the owner of the copyright.
Your nephew asks your band to play at the wedding reception and pays a fee. You arrange with the sound engineer to make a recording of the band and pay the sound engineer for doing so. You own the copyright in the sound recording of the band playing.

Ownership: employer’s copyright

The copyright in any work that is created by an author (a) in the course of (b) employment (c) under a contract of service belongs to the employer. These are three important boxes to be ticked. If (a), (b) or (c) is absent, the default position applies and the author remains the owner of the copyright. Let’s have a closer look at these requirements.

In the course of (employment)

Usually, people are employed to do a specific task, or job, perform a function, etc. Waitrons in a pizzeria are not employed to compose songs; they are employed to take orders from customers, serve their food and drinks, and clear away the dishes. So if a waiter employed in the local pizzeria composes songs off duty (or, even, on duty), this is not in the course of his employment, is it?

However, even if you are not employed specifically to do a particular thing, it might be that a work you author is ‘in the course’ of employment. It depends on the facts of each case.

A man was employed by the SA Weather Service to compile data relating to weather patterns, which were used to analyse and predict the weather. In his spare time, he developed a software program that assisted this task. He was not obliged to create computer programs and it was not part of his job description to do so. However, the Court judged that he developed the program ‘in the course’ of his employment, and so the SA Weather Service owned the copyright.

Employment

This is where confusion sometimes occurs. Many different kinds of freelancers and subcontractors create works in which copyright can subsist. Here are some examples:

engaging an architect to design your house and draw up the plans;
instructing your attorney to prepare a shareholder’s agreement for your new company;
engaging a writer to write your life story.

Generally speaking, it can be said that these freelancers and subcontractors are employed to do a job for you. These people are nevertheless not your employees. Yes, you ‘employed’ them to do a specific task for you, but you pay them an agreed fee for the work. You do not pay their monthly salary, deduct PAYE tax, provide an office for them, pay their medical aid contributions, provide a pension fund, decide when they can have leave, and so on. These are all indicators of employment. If you did do these things in respect of the author who worked for you, he is in employment in this sense — and this box would be ticked.

Under a contract of service or apprenticeship

A contract is an agreement. Generally, it would imply a written document signed by the employer and employee, but it does not have to be. An oral agreement between two people is still a contract and can be enforced as if it were in writing. It is just easier to prove the terms and conditions of an agreement if it is in writing.

It is not clear whether a casual worker who is paid at the end of each day and who sometimes comes to work and sometimes does not, would be employed under a contract of service or apprenticeship. As with many legal issues, it depends on the facts.

In any event, if all three boxes are not ticked, then the employee who created the work owns the copyright. If all the boxes are ticked, the employer owns the copyright.