Copyright Law as It Relates to Work for Hire
Most copyright law is pretty straightforward: you create a work, you own the copyright. But what if you hired someone to create a specific creative work for you? For example, let’s say you hire someone to design your website and write content for it. Who owns the website? Who owns the content? Do you own them or do the people who created them for you own them?
In the absence of a written contract stating who owns the work in question, the law will usually decide that the copyright belongs to the person who created it, with a few exceptions – namely the work-for-hire doctrine.
The work-for-hire exception means that when someone is paid to do something, the person or entity who paid them to create it owns the copyright. The issues involved in determining whether something qualifies as a work for hire are much more complicated and far-reaching than whether money exchanged hands. First, it must be determined whether the creator of the work is an employee, and if so, was the work created in the context of their employment? Generally, in order to say that something was created in the context of one’s employment, the work needs to have been created as a regular part of the worker’s duties and for the direct benefit of the employer. In some cases, even work created at the employee’s home not during normal work hours can still be considered a work for hire if it meets all the other requirements.
To be on the safe side, employers might want to include a clause in their employment contract that defines a work for hire and clearly states that they own the copyright to all works for hire created by the employee.
If the creator of the work is an independent contractor, rather than an employee, then the two parties need a written contract stating that the work is a work for hire and that the copyright belongs to the person or entity that commissioned the work. The contract needs to be a written statement signed by both parties. An oral agreement will not usually hold up in court, although, in some cases, a series of emails may be acceptable, but it is not advisable to rely on them. Instead, it’s best to play it safe and have a contract drawn up and signed by everyone involved so that everyone knows what to expect from the exchange.
Additionally, the work in question needs to be created exclusively for the person or entity commissioning it. In other words, they cannot purchase the copyright to a work that existed prior to their agreement with the independent contractor.
In the absence of a contract, there are a variety of factors courts use to determine whether a worker is an employee or an independent contractor, including how much control they have over the worker’s environment, as well as how they pay them. In general, how the commissioner pays the worker will determine whether they can have the copyright to the work, since it’s not fair for someone to avoid paying employment taxes for a worker, while still getting the benefit of the copyright to their work without the proper contract in place.
All this being said, copyrights are complicated. If you’re working with copyrighted materials and you want to make sure your interests are protected, contact one of our experienced copyright attorneys today.