Guide 2 of 5 · The work
Who owns what a social media marketer makes
Under the Copyright Act, work an employee makes under the terms of their employment belongs to the employer unless an agreement changes that. Work a contractor makes starts out as the contractor’s, so a business that wants to own it needs the contract to say so, and the Act gives a transfer of copyright no effect unless it is in writing and signed. For a film made under a paid agreement, section 98(3) makes the person who paid for it the owner of the copyright, unless agreed otherwise.
General information, not legal advice. The official places to check are the Copyright Act on the Federal Register of Legislation and IP Australia, which says to get the right professional advice before entering agreements with employees or contractors. For whether a marketer is an employee at all, the Fair Work Ombudsman and the ATO.
The Act’s starting point
The Attorney-General’s Department says copyright protection is free and automatic in Australia, with nothing to register. Section 35 of the Act covers literary, dramatic, musical and artistic works, and the Act defines an artistic work to include a drawing or a photograph, “whether the work is of artistic quality or not”. Section 35 then says who owns them:
“(2) Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part.”
“(6) Where a literary, dramatic or artistic work to which neither of the last two preceding subsections applies, or a musical work, is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.”
Copyright Act 1968, section 35(2) and (6)
A contract of service is the law’s term for employment, so work of these kinds made as part of the job is the employer’s from the moment it exists. Section 35(3) adds that this default can be excluded or modified by agreement, and IP Australia says exceptions “must be in the employment contract to be legally binding.”
A contractor starts with the copyright
A contractor has no contract of service, so the employment rule doesn’t reach them. business.gov.au: “Under IP laws, the contractor automatically owns any IP they create. If the hirer wants to own the IP, the contract must state this.”
It describes two common clauses: each side keeps the rights to what it creates, or the hirer owns everything the contractor creates under the contract.
Video has its own rule
Section 98 makes the maker of a film its owner, then sets a different starting point for a film someone pays to have made:
“(3) Where: (a) a person makes, for valuable consideration, an agreement with another person for the making of a cinematograph film by the other person; and (b) the film is made in pursuance of the agreement; the first‑mentioned person is, in the absence of any agreement to the contrary, the owner of any copyright subsisting in the film by virtue of this Part.”
Copyright Act 1968, section 98(3)
So a paid-for film starts with whoever commissioned it: the reverse of a contractor’s written and drawn work. Whether a particular video counts is a question for a lawyer.
At a glance
| What is made | Employee, in the job | Contractor |
|---|---|---|
| Written work, drawings and photographs | The employer, under section 35(6) | The contractor, unless the contract says the hirer owns it |
| Video | IP Australia’s general rule: employers own the IP their employees create in relation to the business | The person who paid for it, under section 98(3), unless agreed otherwise |
| Moral rights | Stay with the creator | Stay with the creator |
Moving copyright: assignment or licence
Copyright is personal property, transferable by assignment, with one firm condition:
“(3) An assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor.”
Copyright Act 1968, section 196(3)
For a marketer, the assignor is whoever owns the work at the start: the business itself for an employee’s captions and graphics, and the contractor for theirs. A business that only needs to use a contractor’s work, not own it, can take a licence instead: IP Australia describes licensing as the owner giving someone else permission to use, but not own, their IP in exchange for payment.
What no contract moves
The Act also gives creators moral rights, including the right to be attributed as the author and the right against false attribution. The Attorney-General’s Department says they apply to creators whether or not they own the copyright, and that they cannot be assigned or licensed. An assignment leaves them with the marketer. The Copyright Act does let a creator give written consent to specified acts or omissions that would otherwise infringe these rights (section 195AWA), so an agreement can include one.
The influencer guide applies all this to paid promoters, and the first guide covers which column a marketer is in.