Copyright in Your Content and Licensing It as a Creator

By Paul S. Rafelson, Founder, Rafelson Law PLLC

Copyright in a photo, video or post starts with the person who creates it, and it stays there unless it is assigned in a signed writing or made as a work for hire. A creator’s content is often created with other people, such as photographers, editors, agencies and collaborators, so ownership can be unclear. We help creators fix ownership, enforce when content is copied and license content to brands and platforms on their own terms.

Who owns the content?

Who made it	Who owns the copyright
The creator, shooting and editing personally	The creator
An employee, within the scope of the job	Generally the employer, as a work made for hire (17 U.S.C. § 201(b))
An independent photographer, editor or designer	The independent creator, unless there is a signed written assignment or a qualifying work-made-for-hire agreement for a work in a category the statute lists (17 U.S.C. §§ 101, 204(a))
Two creators collaborating	Possibly both, as joint authors; each joint owner can generally license the work non-exclusively but must account to the other
A brand, in a sponsored post	Depends on the contract; a license of usage rights is not an assignment

Whether someone is an employee or an independent contractor is decided on the facts, not on the label (Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). A creator with no signed assignment from the freelancer who shot or edited the content does not own it. The freelancer does. A work-for-hire clause with a freelancer only works for the nine categories in 17 U.S.C. § 101, such as a contribution to a collective work or part of an audiovisual work. A single photo or clip usually does not qualify. Get an assignment as well.

What do platform terms do?

Platforms generally take a license to the content a user uploads so they can host and display it, and they usually say the user keeps ownership. The scope of that license differs by platform and changes, so a creator should read the current terms for each platform used, including any provisions about advertising use, sublicensing and artificial-intelligence features. Platform terms do not decide a dispute between the creator and another person who copied the content.

What about music and other people’s material?

Using music, clips or images that belong to someone else needs permission, and a license for personal use on a platform is not necessarily a license for commercial or sponsored use. Content created for a brand deal that includes third-party material can expose both the creator and the brand. Keep records of licenses for anything not created by the creator.

Why the license terms matter more than the fee

Many creator deals go wrong after the campaign: the brand runs the content in paid ads it never paid for, hands it to a retailer, re-cuts it or keeps it up years later. Each of those is decided by a term the creator did not read. An exclusive grant is a transfer of ownership and has to be in writing (17 U.S.C. §§ 101, 204(a)). We draft the license to keep what was not sold with the creator.

See brand deals and talent agreements and monetizing your reach through IP.

Does registration matter for creators?

Yes, when someone copies content that matters. A court case for a U.S. work generally requires registration or a refusal first (17 U.S.C. § 411(a); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019)), and statutory damages and an award of legal expenses depend on timely registration (17 U.S.C. § 412). The Copyright Office offers group registration options for some categories, such as published photographs. See trademark vs. copyright in court.

What can I do when content is copied?

A takedown notice to the platform under 17 U.S.C. § 512(c) does not require registration. A notice must be accurate. Courts in the Ninth Circuit require a sender to consider fair use first (Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016)). Treat it as the rule everywhere. A knowing material misrepresentation can create liability (17 U.S.C. § 512(f)). For repeated or commercial copying, a demand letter or a lawsuit may be better. See demand letters.

How do I get started?

Contact us. Tell us who made the content, what agreements you have and what has happened, and we will tell you whether we can help.

Realistic expectations

We cannot guarantee that a platform removes content, that a court finds infringement or any particular outcome.
Platform terms and copyright office practices change.
Laws, platform programs and their terms change; confirm current terms before acting.
Past results do not guarantee similar outcomes.

Frequently asked questions

Do I own the photos and videos I post?

If you created them yourself, generally yes. If a photographer, editor or agency created them, the photographer or agency owns the copyright unless you hold a signed written assignment or a qualifying work-made-for-hire agreement (17 U.S.C. §§ 101, 201, 204). Check what you signed with everyone who helped make the content.

Does posting on a platform give the platform my content?

Platforms generally take a license to host and display uploaded content and usually say the user keeps ownership. The scope of the license differs by platform and changes, including for advertising and artificial-intelligence features. Read the current terms for each platform, and do not assume they settle disputes with other people.

What is the difference between an assignment and a license?

An assignment transfers ownership, and a license permits use while ownership stays with the licensor. An exclusive license is treated as a transfer and must be in a signed writing, while a non-exclusive license can be less formal. Brand deals should usually grant a license, not an assignment.

Can I use trending music in sponsored content?

Not necessarily. A license that covers personal use on a platform may not cover commercial or sponsored use. Using music or clips that belong to someone else without the right permission can expose both the creator and the brand, so check the license for the specific use.

Do I need to register my copyrights?

Registration is not needed to own copyright or to send a platform takedown notice, but a court case for a U.S. work generally requires it first, and statutory damages depend on timely registration (17 U.S.C. §§ 411(a), 412). It is worth registering content that is valuable or often copied.

How do I take down copied content?

A platform takedown is fast and needs no registration. It also carries liability for the sender if the notice is wrong, and it does nothing against a copier who reposts. For one-off copying it is usually enough. For repeated or commercial copying a demand letter or a suit does more, and we tell you which fits. The platform decides whether to remove content.

Amazon Brand Registry

Enrollment and brand tools for sellers on Amazon.

Legal protection for influencers

The overview.

Brand deals and talent agreements

Usage rights in a brand deal.

Monetizing your reach through IP

Licensing content.

Trademark vs. copyright in court

What registration changes in court.

Sources and notes

17 U.S.C. §§ 101, 201, 204(a), 411(a), 412, 512(c), (f); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019); Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016).

About the author

Paul S. Rafelson is the Founder of Rafelson Law PLLC, a law firm for eCommerce and online business owners. The firm’s practice focuses on Amazon account issues, eCommerce mergers and acquisitions, Proposition 65 and related corporate work. He holds an LL.M. in Taxation from NYU (2017). He founded the Online Merchants Guild in 2018, a volunteer-led trade association run by and for Amazon sellers. He taught state and local taxation as an adjunct professor at Pace Law School. Katherine (Katie) Dariano is a Senior Counsel at the firm. Full biography.

Background

Founder, Rafelson Law PLLC; office at 2255 Glades Rd, Suite 319A, Boca Raton, FL 33431.
Admitted to the bars of Florida (2005) and New Jersey (2006). Katherine Dariano is admitted in New York (2021).
LL.M. in Taxation, NYU (2017).
Before private practice, Paul was in-house counsel at Microsoft, Walmart and GE.
Paul founded the Online Merchants Guild in 2018, a volunteer-led trade association run by and for Amazon sellers. More on the Guild's About page.
Paul taught state and local taxation as an adjunct professor at Pace Law School.

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