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I work for a company that produces recordings of conference lectures. From what I can tell, there are at least three parties that can lay claim to the copyright on the recorded lectures.

  1. The recording company (my company)
  2. The conference organizer
  3. The speaker

The recording company records video of the speaker and their slides presentation at no cost, explicitly for the exclusive right to sell the content. This is always true. (When working under a service for hire scenario, there is always a written agreement that explicitly denies the recording company the copyright, so I do not want to focus on that).

The recording company is doing the work, creating the original work, without any consideration (money or payment of some kind) from either the conference organizer or the speaker. This seems to support that the copyright belongs to the recording company, assuming at least spoken permission to record was given, and is supported by another answer.

There is a somewhat unique set of particulars that may affect who owns the copyright, and not all dealings with conference organizers or speakers include them. These particulars lead to questions:

  • The speaker usually has a signed contract with the conference organizer allowing the lecture to be recorded, but sometimes they do not. Does the speaker have a claim on the copyright if their permission to record is only spoken? Only implied (i.e. they are clearly being recorded, with a huge camera in their face)? What if a written contract does not explicitly mention the capture of their slides as well?
  • The recording company pays a "royalty" on future sales to the conference organizer, which is

    • sometimes only spoken,
    • only sometimes a specific percentage,
    • but sometimes very explicitly written.

    Does paying a "royalty" automatically imply that the recording company is admitting non-ownership of the copyright? Is using the word "royalty" especially important in this case, or is there a benign word that could be used that is not associated with copyrights? Does the specificity of these payments agreements affect copyright ownership?

  • Explicit written contracts often include a perpetuating allowance that sales may continue indefinitely so long as the "royalty payments are met on time". Is this a legal contract?
  • Does the phrase "exclusive right to sell" affect the copyright ownership?

I know copyright varies by country, so let's focus only on US law, because that is where most conferences are recorded.

  • The copyright in the text originates with the author of the text. If the speaker is speaking off the cuff, that's the speaker. The speaker or could assign the copyright to the conference organizer, as could another author if the organizer isn't already the author, but absent such an assignment, the original author continues to own the copyright. Payments could be made in return for an assignment (transfer) of the copyright, or they could be made in return for a license to sell or otherwise distribute the protected work. In other words, the answer depends on all the contracts. – phoog Mar 7 '16 at 23:21
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Raw Copyright

To simplify the discussion I will ignore issues of transfer by contract, work for hire, and fair use; let's imagine they don't exist. I call this raw copyright. In addition, I will ignore the fact that other copyrights might exist, such as that in a logo, photographs used in the presentation, or the scene dressing of the stage itself.

You have not identified everyone who has a claim to copyright, and you have left out some claims of parties that you have identified.

Let's start with what copyright is:

Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution.

So, there needs to be an original work and the copyright belongs to the creator.

For your situation:

  1. The author(s) of the speech have copyright in the speech,
  2. The presenter has copyright in the performance - a derivative work,
  3. The recorder has copyright in the recording - a derivative work.

To perform the work, the presenter must have the permission of the author. To distribute the recording, the recorder must have permission of the author and the presenter.

The organiser of the event has no copyright claim because they created no original work.

Confusion

You say:

The recording company records video of the speaker and their slides presentation at no cost, explicitly for the exclusive right to sell the content.

and

The recording company is doing the work, creating the original work, without any consideration (money or payment of some kind) from either the conference organizer or the speaker.

These can't both be true!

If you are being granted "the exclusive right to sell the content" then that is consideration; consideration doesn't have to be money or payment. When you buy a coffee, your consideration is money, the coffee shop's consideration is coffee; about the only things that have money as consideration on both sides of a contract are banking and insurance.

Your Questions

Does the speaker have a claim on the copyright if their permission to record is only spoken?

I can give you permission to record me without also giving you permission to distribute that recording - these are 2 separate things. In general, it is the owner of the premises (let's say the conference owner) who can grant or deny permission to record - the presenter has no say in this (except that they can refuse to present if being recorded). Even if you are given permission to record, you still need permission of all the copyright holders to redistribute your recording.

This can all be bound up together of course - "May I record you and sell the recording?" "Yes." - then you can do both. It doesn't matter if the permission is verbal or written; permission is permission. The issue arises when the send you a C&D letter or claim your profits - a verbal contract gives you very little in the way of evidence to prove you had been granted a licence.

Only implied (i.e. they are clearly being recorded, with a huge camera in their face)?

Nope. See above.

What if a written contract does not explicitly mention the capture of their slides as well?

"Their slides" - how do you know they belong to the speaker? You need the permission of the author of the slides (and the speech) as well as the speaker.

Does paying a "royalty" automatically imply that the recording company is admitting non-ownership of the copyright?

No, as stated, the recording company has copyright in the recording; the royalty is being paid for the other copyrights it contains.

Is using the word "royalty" especially important in this case, or is there a benign word that could be used that is not associated with copyrights?

Call it what you like; "licence fee" is common. Whatever you call it, it's still a royalty. There is nothing either malignant or benign about the word "royalty".

Does the specificity of these payments agreements affect copyright ownership?

No, a royalty is a licence fee for the use of copyright material; it does not change the ownership in any way.

Explicit written contracts often include a perpetuating allowance that sales may continue indefinitely so long as the "royalty payments are met on time". Is this a legal contract?

Looks OK to me, see What is a contract and what is required for them to be valid?.

Does the phrase "exclusive right to sell" affect the copyright ownership?

No, all that means is that, under the terms of your licence, the copyright owner is agreeing that they will not licence anyone to sell a recording of the presentation, nor do so themselves.

  • Thank you. Digesting this now. Thank you for addressing everything. – 608 Mar 8 '16 at 0:05
  • Are you sure about part of a contract having indefinite, non-expiring terms? I thought I recalled in a business law course that a contract is invalid if any part of it cannot be escaped in some way. Does making it contingent on the royalty payment make it "escapable". – 608 Mar 8 '16 at 0:15
  • @fredsbend I don't understand your comment - there is no law against perpetual contracts. – Dale M Mar 8 '16 at 0:39
  • Maybe it was that there can be no valid contract where one party must continue doing something without consideration. That makes more sense. Is this correct? – 608 Mar 8 '16 at 0:53
  • There is a relevant point in 17 USC 102 (a) that you don't discuss: "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device"; also in the definitions, "A work is 'created' when it is fixed in a copy or phonorecord for the first time". An off-the-cuff talk does not have that property, until it is recorded. – user6726 Mar 8 '16 at 20:17

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