Copyright Ownership of Content in a Business

Under U.S. copyright law, the author of an article or blog post generally is the owner of the copyrights in that work. The same applies for the creator of a video clip or the photographer who takes a photograph -- as a default rule, the creator is the owner of copyright in her work. This rule is subject to a few exceptions, which we discuss in the Copyright Ownership section of this guide. On this page, we will try to give you a rough estimation of who will own what in terms of copyright in articles, posts, video and other content, when work is carried out through each of the pertinent types of business entity:

• Sole Proprietorship: As the owner of a sole proprietorship, you would own the copyright in your articles, posts, and other content. You will also own the copyright in any articles, posts, or other content created by your employees (if any) in the course of their jobs. You would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits with in one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire."


• Informal Group: There is a great deal of uncertainty regarding who owns the copyright in articles, posts, and other content because of the uncertainty as to the legal status of the informal group. Depending on your legal status vis-a-vis other individuals in the group, you may or may not own the copyright in material that you create, and you may or may not be able to stop co-publishers from continuing to publish your work even after you withdraw from the group. Eric Goldman has done an excellent job applying copyright ownership analysis to co-blogging arrangements in his article, Co-Blogging Law. All these issues are better dealt with in a co-publishing agreement, discussed in the Informal Group section.


• Partnership: The partnership would own the copyright in the articles, posts, and other content created by its employees (if any) in the course of their jobs. The partnership would not own the the copyright in any articles, posts, or other content created by an independent contractor unless the work fits with in one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire." As for the works of partners themselves, the law is not entirely clear. It appears that the partnership will own the copyright in works created by the partners in furtherance of partnership objectives, such as publishing a jointly-run website. To confusion, partners can address this issue in the partnership agreement, specifying either that the business or the individual partners will own the copyrights to partner work.


• LLC: The LLC itself would own the copyright in the articles, posts, and other content created by its employees (if any) in the course of their jobs. The LLC would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits with in one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire." As for the works of members themselves, the law is less clear. Members who make themselves employees of their business entities in return for a salary would probably be considered "employees" for copyright purposes, and thus the LLC would own the copyright in articles, posts,and other content created by the member as part of the job. To avoid confusion, members of an LLC could address this issue in the operating agreement, specifying either that the business or the individual members will own the copyrights to member-created work.


• Corporation: The corporation itself would own the copyright in the articles, posts, and other content created by its employees (if any) in the course of their jobs. The corporation would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits with in one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire." Shareholders who become officers of the corporation likely would be considered "employees" for copyright purposes, and thus the corporation would own the copyright in articles, posts, or other content created by the shareholder-officer as part of the job.


• Nonprofit Organization: The nonprofit organization itself would own the copyright in the articles, posts, and other content created by its employees in the course of their jobs. There being no "owners" of a nonprofit in a legal sense, the term "employees" likely would include high level officers of the nonprofit and even the founder or director. The nonprofit organization would not own the copyright in any articles, posts, or other content created by an independent contractor unless the work fits with in one of nine statutory categories in the copyright statute (scroll down for definition of "work made for hire") and the independent contractor expressly agrees in writing that the work is a "work made for hire."

If someone else owns the copyright to articles, posts, and other content appearing on your site, then that person may be able to force you to remove the content, for instance, after withdrawal from the business. It could be devastating to your site if you were forced to take down all of this content. As the text above indicates, you don't have to worry about this in the case of employees because the business owns the copyright in their work. In the case of LLCs, corporations, and nonprofits, the term "employee" likely will often encompass high level actors like members, shareholders, and officers who participate in the day-to-day managements of the business. With LLCs and partnerships, uncertainty about who owns copyright can be fixed by express agreement, so you may want to draft the partnership or operating agreement to provide that the business, and not the individual members or partners, own copyright in their work. Alternatively, partners and members could expressly license the firm to continue using their work, even after withdrawal of the relevant individual.

Even absent an express agreement, a court might find that your business has an implied license (i.e., permission) to continue using partner-, member-, or independent contractor-created content on your website. Alternatively, there is a strong argument that a website or blog -- taken as a whole -- is a "collective work" under copyright law and each article or post is a contribution to that collective work. In that case, you may be able to continue publishing any disputed content as "part of that particular collective work, any revision of that collective work, and any later collective work in the same series." 17 U.S.C. § 201(c). For more on collective works, see the Copyright Ownership section of this Guide.

Note: Ownership of copyright is a very complex, fact-specific area of copyright law, and the determination of who is an employee and who is an independent contractor is very difficult to make in the abstract. The material on this page is no substitute for the individual attention of a lawyer who is familiar with your personal circumstances.