YouTubers love to collaborate. Its fun, adds variety plus it can be a great way to cross promote channels. But did you ever think about who owns the collaborated-on video? It made me wonder.
To answer this question we have to understand how US Copyright law handles collaboration of the style often seen on YouTube video.According to U.S. Copyright law, when more than one person prepares a video “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” then that creates a Joint Work and all the people involved then share authorship equally. When we say, author, we mean the creator for the copyrighted video.
So to create joint authorship or joint ownership of a YouTube video, the collaborators must (1) manifest an intention to create a joint work, (2) each contribute copyrightable elements and (3) their intentions would have had to be a single unitary video.
ONE — Intention is important. Most video collaborators do not sign any sort of agreement. In film, in contrast, everyone signs an agreement. Movie studios make sure that everyone working on a film sign a Work Made For Hire agreement. Under such an agreement, the studio alone is the official Author for copyright purposes. But without any sort of Agreement, how do YouTubers manifest intention. That’s why it is so imprint that there is some clear manifestation of intent.
“I am working on a video for my channel and I’d love it if you allow me to interview you?” There is no intent to share authorship.
“I’d love it if you can contribute some material to my video” — no intent.
“We can together create a great video together” — that may be a problem.
TWO — Another important element is the idea that each owner contributes “copyrightable” elements to the project. To be copyrightable the contribution, in general, must be a creative expression fixed in a tangible form. So if one person writes a script (that’s tangible) while the other films (that’s tangible), each contributes copyrightable elements.
In contrast, an idea or concept that has not been fixed in a tangible form is not copyrightable. So, voicing your opinions, saying that a background needs to be changed or that we should change the location of the shooting is not fixed in any sort of medium and is therefore not copyrightable. Even funding the project is not sufficient to claim ownership. Many make valuable and extensive contribution to a video, but that is not sufficient to claim any ownership. The contribution must be creative and fixed in a tangible form (like a writing, drawing or a recording).
THREE — the authors must have intended that their individual contributions be merged into a single unitary whole. Such is the case with a video. Unless they intended that each contribution is separate and distinct from each other (like two separate videos each uploaded to the owners channel), the intention will be that of a single video (composed of multiple contributions).
So what do we learn. (1) Unless each the parties intend that there will be multiple owners, (2) unless each party contributes copyrightable elements and (3) unless the parties intend that the result is not a single unitary form, the video’s ownership will not be shared. It will likely belong to the channel’s owner or the one who is technically filming, editing and uploading the video. Because contribution, however great, is not sufficient to claim ownership.
Lior Leser, Esq.
Technology, Internet and Software Law
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