Work for Hire Agreements? Do you own your content?
If you have been checking back you have already read my two prior posts about Porn vs. Prostitution & 2257 Documents as well as Model Releases and why you need them. If not, I strongly suggest that you go back and read those two articles. You can find them here;
Part 2 – https://adultbizlaw.com/2020/05/19/new-to-onlyfans-heres-what-you-need-to-know-part-2-class-is-in/
In this article I will cover the one basic copyright issue that many Content Creators face – ownership of their content. So many people think that if they pay for something, then they own it. That is not necessarily true when it comes to copyright. Even if you pay (or don’t pay) someone to record video or take photographs for your OnlyFans account, you probably do not own that content unless that person as signed a Work for Hire Agreement assigning their rights in the copyright to you or your company.
Copyright: Employment vs. Agreement
Copyright is a property right – no different from purchasing a house or a condo. For you to gain ownership of real estate the sale has to be in writing. You wouldn’t purchase a house without a contract, and you shouldn’t have someone shoot your content without one either.
There are two ways to secure copyrights in your work, either though a Work for Hire Agreement or through employment. What “employment” refers to is that you or your company regularly employs your videographer or photographer, pays them a salary, withholds taxes and pays employment taxes to your state on their behalf. That is employment. Through employment, you own everything your employee does based on a Master-Servant relationship theory. While quite archaic, lawyers and courts still use that term. If you do not regularly employ your videographer or photographer, then you will need to use a Work for Hire Agreement.
A Work for Hire Agreement is a simple form contract that basically states that you are paying your videographer/photographer for not only their work that day, but also, so he/she will assign you their rights in the copyright to the videos or photos they captured that day. Once those rights are assigned to you in writing, you own them and you can whatever you want with your content. Failure to secure the copyright can result in that videographer/photographer coming back later and demanding to be paid more for your continued use of their videos/photos. Or if you refuse to pay them more money – called a “licensing fee” – they can contact the platform and force them to remove your content. If you continue to use their videos/photos, you could actually get sued for copyright infringement.
So Why Do They Own My Content If I Paid Them?
The law surrounding copyright in the United States indicates that the owner of the copyright of a particular video or photo is the person who fixes;
in a tangible medium of expression “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ . . . if a fixation of the work is being made simultaneously with its transmission.” See 17 U.S.C. §101. Fixation is a requirement for obtaining a copyright.
This basically means that the person holding the camera is the person who owns the copyright. A full analysis of copyright law on this topic could fill a book. However, what you need to know is that every time someone takes a video or photograph of you that you want to use on your OnlyFans page or your website/social media accounts, you should have them sign a Work for Hire agreement.
If you do not have a Work for Hire agreement, you may be able to find a free one on the Internet, or we do include one in the Production Packet of forms that we sell here;
https://adultbizlaw.com/2694-2/
Conclusion
If someone else has held the camera and shot your content and you do not have Work for Hire Agreements signed by that person for each and every shoot, there’s a good chance that person owns your content. Usually, I find that in situations like this, it is usually a boyfriend, girlfriend or spouse who has held the camera. While your relationship is strong, there may be no issues now, but what happens when and if you break up ?
You may want to read – https://adultbizlaw.com/2018/01/04/so-you-broke-up-with-your-scene-partner-now-what-who-owns-your-content/
Plan for the worst, and immediately have your significant other to sign the necessary Work for Hire Agreements. That way you will be protected if the two of you ever happen to split. I have had clients in the past that have spent tens of thousands of dollars in legal fees fighting over who owns the content once they break up. And I have had clients that have lost tens of thousands of dollars in income when their ex contacted the platform and demanded the content be removed. Protect yourself !
AdultBizLaw.com 
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