Copyright Law and Content Marketing.

October 13, 2009

I attended the OpenView Content Marketing Forum last week, and while I learned a lot about content marketing, I kept thinking about the legal perspective to content marketing. So here are some thoughts.

A lot of this new way of marketing is based on becoming a publisher, but some people may not realize that there are important copyright issues in play here, which should be thought through, as they may be counter intuitive.

General Rule – The Creator Owns the Content. The general rule under copyright law is the one who creates the content, owns the content. This is a pretty basic copyright concept, but under closer scrutiny, an interesting issue comes to light when outsourcing content creation.

Exception – Work Made For Hire.

o  Content Created by Employees. There is an exception to this general rule, which provides that employees who create content within their scope of employment automatically provide ownership to that content to their employers (i.e. work made for hire), without having to address it in a contract (although IP agreements employees sign when starting work usually clarify this copyright ownership issue).

Outsourced Content Creation. Here is where it gets more interesting, or fun if you are an attorney. Outsourced content creators (i.e. independent contractors) own the content they create/provide, even though they are fully compensated for the work. This means that the outsourced content creator could (a) sell the content to someone else, or (b) re-use it in another way (remember, they ‘own’ it, and the company that paid for it receives an implied non-exclusive license). This same outcome occurs when hiring an outsourced software developer, architect or professional photographer, so it is really not a new issue at all. The easy way to avoid this problem all together is to designate the services as ‘work made for hire’ in a contract, and along with a lot of other important legal words, transfer the ownership to the company that paid for the content.

Resources. There are many helpful resources on content ownership issues, so take a look at some of these links:

Copyright Office Circular on Work For Hire
Legal Zoom Guide – Work For Hire 

Every expansion stage software company should read their content outsourcing contracts closely (and discuss it with their attorney!) to understand what rights they acquire and what rights the creator retains. This issue is too often forgotten and is not intuitive at all, so keep it in mind.

President and Shareholder

<strong>Jeremy Aber</strong> consults OpenView portfolio companies on legal and contract matters. Jeremy runs his own IT focused law firm, the <a href="">Aber Law Firm</a>, and has over 18 years experience in technology and corporate law.