Welcome to this edition of Drone Law Pro Radio. Your source of information for everything UAV. We are drone attorneys and we speak drone.
Today on Drone Law Pro Radio we’re going to be talking about Copyright. Many Part 107 drone operators and pilots do not understand that when they fly their drone and they operate the camera that they are generating photos, videos and data which are copyright protected.
The very first question every drone business flying under the FAA‘s Part 107 regulations needs to answer is this: who owns the copyright to the photos, videos, and data that you are capturing as a result of your operations?
So there’s a number of different variables here that are going to apply but we should start with the general principle under copyright law, that the person who is operating the camera owns the copyright.
So if you are a sole proprietor in your drone business, you got your Part 107 airman certificate, you are flying the drone at the worksite, you are operating the camera at the worksite, that you are, in all likelihood, the copyright owner of that work – of those works – and then you can license them to customers. We’ll talk a little bit more about copyright licensing in a little bit. What you need to understand is that you own the copyright, you typically do not transfer all the rights in a copyright to a customer. You license to your customer a slice of that copyright however you want. And we’ll talk a little bit about that towards the end of this, but you get to license the copyright.
Now, let’s take another scenario. A very common scenario where the drone company is hiring pilots, either as employees or as independent contractors to go out and do flight operations. In that instance it very well may be that the person operating the camera on the drone is the copyright owner, not the drone business, not the company that hired the person to go out and do the flight. That issue breaks down into two different types of analysis. One, if they are an actual employee of your company then it can be argued that in fact the company owns the copyright. If they are a contractor, then in all likelihood they own the copyright, not you the company, unless you have an agreement in place with the employee and with the contractor as to who owns the copyright in the works generated by the drone operation.
So the first thing that you need to understand here is that you should have a contract in place with anyone who is part of your drone operations. Anyone who is part of your flight crew which spells out copyright ownership in the company. If it’s an employee, there’ll be an employment contract. That employment contract will acknowledge that all output, all works generated by drone operations in which they participated, are owned by the company and then they agree to assign any rights to you if there’s an issue in the future.
Purchase a Flight Crew Contractor Agreement
If it’s a contractor, there’s a concept called work-for-hire which might apply to certain independent contractor pilots or camera operators, but it’s uncertain. There’s a lot of grey area on the work-for-hire doctrine under copyright law. So you should absolutely, with your contractors, have a contractor agreement which spells out that you, the drone service company, own the copyright to all of the work that is generated by the contractor arrangement. And so that should be an assignment of rights for the independent contractor to you.
Now we at Drone Law Pro have developed contracts that will help you manage your copyright as a result of your drone operations to make sure that they are owned by the proper party, most typically the drone company itself.
Now, let’s take a third scenario where you have, potentially, an employee who is out doing the flight but you have another person operating the camera on something like DJI Inspire. Who owns the copyright when someone is flying the drone and someone else is operating the camera? Again, there is not an absolute black and white answer here but the most likely result is that the person operating the camera is going to own the copyright. So, again, you have to have your copyright assignment in place with the camera operator with anyone else in the flight crew who could take credit.
Let’s take a look at a fourth situation. You get your output, your photographs, and your videos and you turn them over to someone else to do post-production work to make – to take – the video and cull it down into a sixty second spot, do some editing, some cleanup on the video. Perhaps colorization, perhaps reorganize the video into something that the customer of your drone business is going to use. It’s very possible that that person working in post-production now may claim copyright in those works. So, again, you have to have a contract, an independent contractor agreement in place or an employee agreement in place, which spells out copyright ownership in your company name.
So, these are the issues that involve copyright with virtually every drone operation. And the reason why copyright is important is because it is perhaps your most valuable asset as a drone service business and here is why. Many people produce widgets and then they sell those widgets to wholesalers who then sell those widgets to retailers who sell them to consumers. They’re physical tangible items. Copyright is an intangible property. Meaning that yes, you can see a photo, you can see a video, but the rights in that digital media is intellectual property, it’s an intangible asset. So those intangible assets are owned and transferred by contract. And so you need to make sure that your contract, both downstream with your employees and contractors and upstream with your customers, deal with the copyright.
And so with the downstream folks, the employees and contractors, you want to make sure that all the copyright is owned by the company that is paying for the service that is paying the employees and the contractors for the service; and upstream you want to make sure that your licensing, or perhaps even assigning, but you’re typically licensing rights in the works to a customer.
So example, let’s say you’re doing a mapping project for a particular piece of land, you’re going to use drone deploy or what have you to generate a 3D image topographical of the area, you go out and you do the flight, you’ve got all of your copyright language in place with your contractors and your flight crew to make sure that you the company own the copyright.
Now with your customer, you have lots of options. You can license that copyright to the customer in lots of different ways. You could say that I am licensing you the rights in the data files, in the video, in the photographs for the purposes of – and then fill in the blank. Are they building on that property? Are they just doing an as-is inquiry on the property where they want to document the current status of the property? You can put that purpose in there and then that’s the scope of the license.
Now what if they want to use those photographs and videos for some other purpose? Then they need to come back to you and license more rights so this gives you flexibility on pricing. If you have a customer that doesn’t want to pay a lot, then you can scale down the scope of the license to something that accomplishes their purpose, but nothing more. If they are a good client and they’re paying you a lot of money you can license them really broad rights in the works and retain some rights yourself for marketing purposes, etc. And if they’re a really, really, really good client you can assign them all of the rights in the works leaving you no rights in the works.
Drone pilots, drone companies, need to be aware of copyright law. You need to protect your copyright. You need to treat the copyright as your business asset and deal with that appropriately.
My name is drone attorney, Enrico Schaefer, and we’ve been talking copyright law. We will see you next time.
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