Thursday, January 23, 2014

Does LLC Own Officer's Blog Entries?

Dear Rich: I am part of an LLC that owns a blog. One of our officers was the active blog contributor. She died last year. Some of the other officers would like to publish her blog posts, but we are unsure who owns the copyright - the LLC or her heirs? Copyright ownership may hinge on any of these factors: (1) did the LLC operating agreement transfer rights? (2) was the officer an employee of the LLC? or (3) did the LLC enter into a contract with the officer? (We're presuming that the officer was one of the member/owners of the LLC).
What does the operating agreement say? The operating agreement is the rule book for the LLC owners. Does yours say anything about ownership of copyrightable materials? If it assigns or transfers ownership to the LLC, then you are in the clear. (Note: LLC operating agreements don't always address these sorts of intellectual property issues.)
Was the officer an employee of the LLC? An LLC member/owner is not automatically an employee of the LLC. (The determination of employee payments may affect how LLC members are taxed.) If the LLC treated the officer as an employee -- for example, paid a regular salary or provided benefits, any copyrightable work created within the course of employment would be owned by the LLC under work made for hire principles.
Did the LLC enter into a contract with the officer? Even if the officer was not an employee, it is possible that the parties entered into a contract that transferred some or all rights to the officer's blog entries. In the absence of a written agreement, there may be an implied license for the LLC to use the officer's entries. If you anticipate a dispute with the heirs over this issue, it's prudent to consult with an attorney.
PS Thanks to Steve Fishman for his comments on this one.