User comments. Forum Posts. User questions. Uploaded audio files. Fan Art. Guest Posts. We all want them on our site. They are what drive the community. That type of user generated content is a huge leap in validation of your ideas or your product. The question is: who owns them?
To understand that, let’s look at copyright and how it is owned. A copyrighted work is owned by the person who creates it unless it is a “Work for Hire”. A Work for Hire can only be created if it was created by an employee of the company who was hired for the purpose of creating that type of work or if there is a written agreement outlining the work as a work for hire.
Authorship of User Generated Content Means Liability
If you create a work, your rights are vested on the creation. If the copyrighted work infringes on another original work, you will also be liable to that person for the damages that you caused. As we have discussed before, avoiding copyright infringement comes from innovation. Creating something new. You do not want to simply create a different version of an already existing work. You want to create something new. Something different.
That is what you do with your content. You create new and different (original) content. Your users may not always do that. If you include in your web terms that any user generated content on your site is a work for hire, you are, essentially, allowing your users to add to your original content. You also, however, are taking on responsibility for your users’ potential copyright infringement. As a work for hire of user generated content, you will be considered the author of the work. You will be the one responsible for the content. That means, you may be subject to liability.
If you claim to be the author, you receive the benefit of authorship. You are also subject to the liability. That creates more work on your end. If you are the owner of all content, even user generated content, on your site, you will need to police your site.
Further, if you claim to be the owner of anything posted on the site, you will discourage people from contributing because they wouldn’t want to give up their thoughts. That would be self-defeating. You want people to contribute. You want your audience to add to the conversation. So, let’s look at some other options.
Make Sure the Responsibility is on the Author of the User Generated Content
You do not want to be responsible for policing every single post or comment made by someone on your site. You do, however, want the option to remove content that is harmful to your brand or infringing on someone else’s intellectual property rights. That is where is helps to create a copyright infringement policy. At a minimum, this should meet the requirements of the DMCA, but you need to develop a policy that works with your brand. The policy can be a part of your web terms or a separate document. If you create it separately you should make sure it references your web terms so all of the agreements on your site work together.
You want the person who creates content to be responsible for their own words. For their own actions. You want a policy that allows (but does not require) you to remove content that is infringing or harmful to your brand.
But, you also want the right to use it.
Licenses for User Generated Content are the Answer
Intellectual property, as we have discussed before, has a number of rights. That means, when it is created, certain rights can be given and received without having an effect on the author’s other rights or options. If intellectual property rights are “transferred” the rights change ownership. If, however, you license the intellectual property the rights are specific to that license, but the author, unless the license is exclusive, has continued rights to do whatever they wish with the work.
So, how does this help you. If, in your user generated content policy, you indicate that you have a:
“nonexclusive, royalty-free, perpetual, irrevocable, and fully transferable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media”
the author cannot stop you from using it. They remain the author of their content and can do with it as they wish. But. So can you. Even though they own the content, you have a right to use it in any way you choose forever without paying for it. They also have a right to use content they created. It is a win-win.
Use without Responsibility
If you do not own content, but you have a perpetual right to use it without paying for it, you allow your users to contribute to the conversation without taking away their original works of authorship, but you also gain the use of content that can be excellent for marketing or as a springboard for ideas in the future.
This is also true if you are building something. With your BETA testers or other user suggestions, you do not want to owe them anything or have someone attempt to claim they had some part in the development of your product. So, you do not want to claim ownership, but you do need something in writing on the policies of your site that gives you rights to use anything without an obligation to pay or justify your use. You have all of the rights to use content without the responsibility of being the author of user generated content on your site.