The latest tool in a marketer’s toolbox – footage, stills and sound recordings captured by drone.
While so much time and effort goes into the creative process when shooting stills, sound recordings or action footage for marketing materials and other commercial uses, who owns the copyright to the stills, recordings and footage captured by the drone? While most would assume that it is the customer (the party paying for the work product), Canadian copyright law says otherwise.
In Canada, the general rule is that the drone pilot capturing the work product is the presumptive first owner of the copyright. The circumstances where this general rule governs (and where it does not) are discussed below.
Ensuring that rights to distribution and use (essentially, the copyright rights) flow to the intended party is mission critical. Copyright and other intellectual property rights to work product generated by drone are subject to agreement between the drone pilot, the drone services company and the customer.
The following is a brief review of Canadian copyright law, its impact on commercial drone services companies and the factors they should consider when producing and selling copyrighted videos, sound recordings and photographs captured by drone. For an more in depth analysis of the law on this issue, feel free to review the recently published Dentons Insight on this topic.
OVERVIEW OF COPYRIGHT LAW IN CANADA
In Canada, copyright is protected by the Copyright Act. The Copyright Act provides exclusive rights to an owner of copyright in original literary, dramatic, musical and artistic works, as well as in sound recordings, performers’ performances and broadcast signals. The creative content generated is referred to as a “work”. The rights to the created work include, among other things, the rights to produce, reproduce, adapt, present and to communicate it to others.
In general, and as referenced above, the first owner of copyright in a work is the author of the work – the person who wrote the lyrics for a song, painted a picture, or who snapped the photo. The owner of a copyrighted work is entitled to exercise the rights set out in the Copyright Act, importantly including the right to authorize others to exercise such rights. As such, only the owner can transfer rights in the copyrighted works by assignment or by licence. Any assignment must be in writing and signed by the first owner of the copyright.
The Copyright Act also provides for “moral rights” to a work. Moral rights include the right to attribution, integrity and association of the work and accrue to the author of the work.
HOW DOES THIS APPLY TO WORKS CAPTURED BY DRONE?
Though drone technology and the visual perspective that can be obtained using a drone are relatively new, images, sound recordings and footage captured by drone are no different than those captured by a traditional camera lens, and are subject to the same copyright laws in Canada.
So – where a drone services company has been hired to capture still images, sound recordings or footage, who is the first owner? The first owner of the copyright will be the drone pilot (if the drone pilot is an independent contractor) or the drone services company (if the drone pilot is an employee). Given the nature of moral rights under the Copyright Act, the drone pilot personally will be the owner of the moral rights to the work. Drone services companies will (or rather, should) have agreements with their pilots (who may be employees or independent contractors) where the pilots agree that the copyright rights to the work product accrue to the drone services company and stipulate that the pilot has waived their moral rights.
In turn, when selling drone services to its customer (the purchaser of the still images, sound recordings or footage), the drone services company will assign and transfer the copyright rights to the work produced to the customer, and will agree to a waiver of any potential claims against its customer for any breach of its statutory rights, breach of privacy, or other intellectual property infringement relating to the use of the work.
However, even where the drone services company assigns or transfers its copyright rights to its customer, the drone pilot engaged by the drone services company remains the owner of moral rights in the work. Moral rights cannot be assigned but can be waived, and should be waived by the pilot as part of the assignment or transfer to the customer.
CONSIDERATIONS FOR DRONE SERVICES COMPANIES
1. More than verbal agreements with customers are necessary – ensure agreements with customers are in writing
Every engagement by or job for a customer should be governed by a written agreement between the drone services company and the customer. Grappling with the ownership and consequences of copyright and moral rights in its contracts with its customers is a hallmark of a competent and professional drone services company. While written agreements do not have to be lengthy and include redundant terms, some form of agreement will memorialize the intention of the parties and serve to protect the drone services company if any issue arises in the future.
2. Confirm who will own the copyright to the work
Often, the customer hiring the drone services company will want to own the copyright in the work. This is an area ripe for negotiation between a drone services company and its customer. In order to transfer the copyright rights to the customer, the drone services company must assign the copyright, and the assignment must be in writing and signed by the first owner (the pilot or the drone services company, depending on the circumstances described above).
On the other hand, if the intent is for the drone services company to maintain copyright ownership, consideration should be given to entering into a formal licensing agreement with its customer that clearly sets out the terms pursuant to which the work may be produced, reproduced, distributed, edited, copied and used by its customer. Licensing agreements should be entered into with the assistance of legal advice. While standard licensing agreements can be devised for standard jobs or retainers agreed upon between a drone services company and a customer, there may not be a “one-size-fits-all” agreement that is suitable for all circumstances.
3. Ensure the drone pilot waives moral rights to the work
Drone services companies should also be prepared to have the author(s) of the work being created waive any moral rights in the work in order to effectively pass rights and title to the work to its customer.
4. Determine whether the drone pilot is an employee or an independent contractor
Whether the drone pilot conducting the flight to capture the work is an employee or an independent contractor of the drone services company will impact who is considered, from a copyright law perspective, to be the author of the work. This has a corresponding impact on who has the right and ability to legally assign those rights to a customer. If a drone pilot is an employee, the drone services company will, subject to any agreement to the contrary, will be the original owner of the work. If the drone pilot is an independent contractor, then that independent contractor is the presumptive first owner of the work.
Drone services companies that engage pilots as independent contractors will be wise to ensure that agreements with the pilots for the effective assignment of copyright rights to the drone services company and waiver of moral rights. To avoid uncertainty, all agreements with employees or independent contractors should expressly stipulate that any works developed or created during the employee or independent contractor’s tenure will be deemed to be assigned to and owned by the drone services company.
The sale and distribution of still images, sound records and video footage captured by drone in Canada are governed by the Copyright Act, requiring a drone services company to consider copyright ownership of the works when selling those works to its customers. Early consideration, even before the shots, sounds, or footage are captured, is the most prudent approach for any professional drone services company. Clarity and precision of who owns the works will attenuate future risks that may arise over the production, use and distribution of still images, sound recordings and video footage captured by drones.
Bethany McKoy co-authored this article but has left the Firm.