Introduction

Drones have launched into commercial popularity as a relatively low-cost and accessible way to capture videos and photographs. Wildlife scientists, filmmakers, real estate marketers, agri-businesses, college instructors and resource extraction companies have all taken advantage of camera-mounted drones to collect images for commercial distribution and use.

While so much time and effort goes into the creative process when developing marketing materials and shooting stills, sound recordings or action footage, ownership of the work product is a key issue. Ownership is determined by who possesses the intellectual property rights associated with the work product. Key among these intellectual property rights are copyright rights.

Images, sound recordings and footage captured by drone are no different than those captured by a traditional camera lens; ensuring that rights to distribution and use (essentially, the copyright rights) flow to the party paying for their production is mission critical. Copyright and other intellectual property rights to work product generated by drone are subject to agreement between the drone pilot, the drone services company and the customer.

Increased commercial use of drone technology has brought a coordinate increase in the risks inherent in the sale and distribution of works subject to copyright. Images and videos captured by drones are protected by the Copyright Act. Therefore, drone services companies must consider the interaction of copyright law and day-to-day business operations, including employee relationships and copyright licensing agreements.

The following is a brief review of Canadian copyright law, its impact on commercial drone services companies and the factors they should consider when producing and selling copyrighted videos, sound recordings and photographs.

Copyright law and its impact on drone services companies

In Canada, copyright is protected by the Copyright Act.¹ The Copyright Act provides certain exclusive rights to an owner of copyright in original literary, dramatic, musical and artistic works, as well as in sound recordings, performers’ performances and broadcast signals. These rights are set out in section 3 of the Act and include the right to:

• Produce the work (or any substantial part of it);
• Make a sound recording or film of the work;
• Reproduce, adapt and publicly present the work as a cinematographic work (i.e., in audio-visual format); and
• Communicate the work to the public by telecommunication (i.e., by television broadcast or over the Internet), including by making it available to individual members of the public on demand.²

The owner of a copyrighted work is entitled to exercise the rights set out in section 3, importantly including the right to authorize others to exercise such rights.³ As such, only the owner can transfer rights in the copyrighted works by assignment or by licence. Any assignment or licence must be in writing and signed by the first owner of the copyright.⁴

The rights provided for in the Act include both the copyright rights discussed above, as well as moral rights to the work.⁵ Moral rights include the right to attribution, integrity and association of the work.

In general, the first owner of copyright in a work is the author of the work. Where a drone services company has been hired to capture still images, sound recordings or footage, the drone services company, or more specifically, the drone services company’s pilot, is the first owner of the copyright in the still images, sound recordings or video footage. The drone services company, often by agreement with its customer (the purchaser of the still images, sound recordings or footage), will assign and transfer the copyright rights to the work produced, and will agree to a waiver of any potential claims against its customer for any breach of its statutory rights, breach of privacy, or other intellectual property infringement relating to the use of the work.

However, even where the drone services company assigns or transfers its rights of ownership to a subsequent owner (for these purposes, to the customer), the drone pilot engaged by the drone services company remains the owner of moral rights in the work, subject to an agreement to the contrary. Moral rights cannot be assigned but can be waived. Furthermore, copyright and moral rights in Canada will generally last for the life of the author (drone pilot), plus an additional 50 years.

Considerations for drone services companies

Grappling with the ownership and consequences of copyright and moral rights in its contracts with its customers is a hallmark of a competent and professional drone services company. Below are some of the many considerations that a drone services company should attend to before entering into contracts with its customers to capture images, sound records or footage by drone.

i) Determine who will own the copyright

It is important that a drone services company determine where they want any potential copyright to lie before commencing work for its customer. This is an area ripe for negotiation between a drone services company and its customer. If the intent is that the customer hiring the drone services company will own the copyright in the work (which is most often the case), the drone services company must assign the copyright, and the assignment must be in writing and signed by the first owner (the pilot or the drone services company, depending on the agreement between the two). Drone services companies should also be prepared to have the author(s) of the work being created waive any moral rights in the work in order to effectively pass rights and title to the work to its customer.

On the other hand, if the intent is for the drone services company to maintain copyright ownership, consideration should be given to entering into a formal licensing agreement with its customer that clearly sets out the terms pursuant to which the work may be produced, reproduced, distributed, edited, copied and used by its customer. Licensing agreements should be entered into with the assistance of legal advice, as there will be no “one-size-fits-all” agreement.

ii) Determine (and appropriately document) whether pilots are employees or independent contractors

Whether the drone pilot conducting the flight to capture the work is an employee or an independent contractor of the drone services company may impact who is considered, from a copyright law perspective, to be the author of the work, and therefore who has the right and ability to legally assign those rights to a customer. If a drone pilot is an employee, the drone services company is the original owner of the work. If the drone pilot is an independent contractor, then that independent contractor is the presumptive first owner of the work.

Drone services companies that engage pilots as independent contractors will be wise to ensure that agreements are in place with pilots for the effective assignment of copyright rights to the drone services company and waiver of moral rights. Similarly, customers hiring drone services companies would be wise to ensure—by written agreement—that the drone services company confirms it has the legal ability to assign and waive the copyright and moral rights in the work.

To avoid uncertainty, all agreements with employees or independent contractors should expressly stipulate that any works developed or created during the employee or independent contractor’s tenure will be deemed to be assigned to and owned by the employer. Moreover, drone services companies may also consider a clause requiring the employee or independent contractor to sign any further documents to transfer title to the work to the employer, if necessary, and include an express waiver of any potential moral rights that an employee or contractor may have as “author” of a particular work.

Further, because copyright rights are created when the work is created by the drone pilot, it is important that drone services companies identify the drone pilot(s) who captured the still images, sound recordings or video footage (who “authored” the work), so as to track and maintain information about their longevity. It is important to do so whether the author is an employee or an independent contractor, as the term of copyright depends on the longevity of the author.

Conclusion

The sale and distribution of still images, sound recordings and video footage captured by drones are protected by the Copyright Act, requiring a drone services company to consider ownership of the works. Early consideration, even before the shots, sounds, or footage are captured, is the most prudent approach for any professional drone services company. Clarity and precision of who owns the works will attenuate future risks that may arise over the production, use and distribution of still images, sound recordings and video footage captured by drones.

For more information, please contact Kathryn McCulloch or another member of the Dentons Aviation team.

Bethany McKoy co-authored this article but left the Firm as this insight went to press.