MAKE CHECKS BEFORE THREATS
in a position to threaten any infringing third party with copyright infringement proceedings before the High Court
The Copyright Act does make provision for certain exceptions to the general rule that the author of a work is the owner of the copyright in it. In this regard, the exception which is most relevant when dealing with outsourcing works is that where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording, and pays or agrees to pay for it, the person who commissions the work will be the owner of any copyright in it. For example, if a company commissions a photographer to take photographs, the copyright in those photographs would automatically vest in the company and not the photographer.
To summarise, it is advisable for any entity or person who chooses to use an independent contractor to create a work to ensure that a suitably worded agreement is in place prior to the appointment of the contractor. If the work has already been created without a written agreement in place, it is advisable to secure the transfer of the copyright as soon as possible in a written agreement.
Before any company considers making copyright infringement allegations, it will need to be certain of its footing and that it does, in fact, own the copyright it thinks it owns.