External consultants are often hired by companies to produce communication and training material. Who holds copyright to this material? What steps can the company take to protect this material? Must the consultant be credited?
As a general rule, the author (the creator of the work – in this instance, the consultant) is the first proprietor of the copyright. The company should therefore make sure that it arranges contractually to become the proprietor of the copyright in the works that it commissions. In addition, the author of the copyright should sign a document assigning the copyright to the company that pays for the commission.
This general rule is subject to a few exceptions, including:
- Where the company commissions a consultant to take a photograph, to paint or draw a portrait, to make a gravure, a sound recording or a cinematograph film and pays (or agrees to pay) for it, and the work is made according to that commission, the company is the owner of the copyright. However, it must be noted that the aforementioned exception to the rule applies only in the instance where the company commissions certain specified works, and it does not apply to all works.
- If the external consultant is employed by a third party under a contract of service, the third party will be the proprietor of the copyright, and will therefore have to be the person who assigns it to the company.
If the company owns the copyright or uses the copyright work under licence, there is no need to credit the consultant.
S.A. Wolvaardt is Trademarks Manager at Bowman Gilfillan, Tel: +27 11 669 9683; or visit www.bowman.co.za