Comment by alphan0n
6 months ago
Copyright law is pretty clear on commissioned work, you are the holder, if your employee violated copyright and you failed to do your due diligence before publication, then you are responsible. If your employee violated copyright and fraudulently presented the work as original to you then you would seek compensation from them.
> Copyright law is pretty clear on commissioned work, you are the holder, if your employee violated copyright and you failed to do your due diligence before publication, then you are responsible.
No, for commissioned work in the usual sense the person you commissioned from is the copyright holder; you might have them transfer the copyright to you as part of your contract with them but it doesn't happen by default. It is in no way your responsibility to "do due diligence" on something you commissioned from someone, it is their responsibility to produce original work and/or appropriately license anything they based their work on. If your employee violates copyright in the course of working for you then you might be responsible for that, but that's for the same reason that you might be responsible for any other crimes your employee might commit in the course of working for you, not because you have some special copyright-specific responsibility.
This is a common misconception.
You mean the author. The creator of a commissioned work is the author under copyright law, the owner or copyright “holder” is the commissioner of the work or employer of the employee that created the work as a part of their job.
The author may contractually retain copyright ownership per written agreement prior to creation, but this is not the default condition for commissioned, “specially ordered”, works, or works created by an employee in the process of their employment.
The only way an employer/commissioner would be responsible (vicarious liability) for copyright infringement of a commissioned work or work produced by an employee would be if you instructed them to do so or published the work without performing the duty of due diligence to ensure originality.
> The creator of a commissioned work is the author under copyright law, the owner or copyright “holder” is the commissioner of the work or employer of the employee that created the work as a part of their job.
Nope. In cases where work for hire does apply (such as an employee preparing a work as part of their employment), the employer holds the copyright because they are considered as the author. But a work that's commissioned in the usual way (i.e. to a non-employee) is not a work-for-hire by default, in many cases cannot be a work-for-hire at all, and is certainly not a work-for-hire without written agreement that it is.
> The author may contractually retain copyright ownership per written agreement prior to creation, but this is not the default condition for commissioned, “specially ordered”, works
Nope. You must've misread this part of the law. A non-employee creator retains copyright ownership unless the work is commissioned and there is a written agreement that it is a work for hire before it is created (and it meets the categories for this to be possible at all).
> The only way an employer/commissioner would be responsible (vicarious liability) for copyright infringement of a commissioned work or work produced by an employee
What are you even trying to argue at this point? You've flipped to claiming the opposite of what you were claiming when I replied.
> duty of due diligence to ensure originality
This is just not a thing, not a legal concept that exists at all, and a moment's thought will show how impossible it would be to ever do. When someone infringes copyright, that person is liable for that copyright infringement. Not some other person who commissioned that first person to make something for them. That would be insane.
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