Deciding who owns copyright is often an essential aspect of determining intellectual property rights.
The Copyright Act states that where a person (“the customer”) pays someone else (“the supplier”) to create something e.g. photographs, computer programmes, artwork, marketing materials etc and “the work is made in pursuance of that commission” then the customer owns the copyright in that work.
Often it can be more complicated than it sounds to determine ownership particularly where there is no written agreement requesting the works between the customer and the supplier. The Court of Appeal has recently confirmed that in New Zealand that notwithstanding there may not be an express written agreement an agreement to commission the works can nevertheless be implied under the Copyright Act in certain circumstances.
For all parties dealing with intellectual property issues involving copyright where either commissioning the production of copyright work or undertaking copyright work for a customer it is essential that the issue of who is to own the copyright is addressed at the time to avoid any potential for dispute. The mere fact that there is no written agreement to commission the work may not prevent the Courts finding that in fact the work was commissioned by a party.
In order to avoid nasty surprises there is no substitute for proper documentation of arrangements at the outset. The old adage prevention is better than cure continues to apply.
Farry and Co is experienced in all aspects of intellectual property law and documentation of ownership of copyright and licensing. If you have any queries in this area please contact us to discuss.
Paul Farry
pfarry@farry.co.nz
09 379 0055 or 03 477 8870
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.