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.

Client Reviews
"I was referred to Peter Lubin from someone in the car business to handle a law suit. From the moment I made the appointment Peter and his staff were outstanding. This wasn't an easy case, most lawyers had turned me down. However, Peter took the time to meet with me and review everything. He took on the case, and constantly communicated with me about updates and case information. We beat this non-compete agreement case in record time. I would use him again and recommend him to my closest family and friends. 5 stars is not enough to thank him for his service." Sebastian R.
"I worked on two occasions with Peter Lubin and his staff. They took their time with me and discussed each and every item in detail. The group makes you feel like you are part of the family and not just another hourly charge. I recommend Peter to anyone who asks me for a referral. If you are looking for a top notch attorney at a reasonable rate, look no further than Lubin Austermuehle." Kurt A.
"Excellent law firm. My case was a complicated arbitration dispute from another state. Was handled with utmost professionalism and decency. Mr. Peter Lubin was able to successfully resolve the case on my behalf and got me a very favorable settlement. Would recommend to anyone looking for a serious law firm. Great staff and great lawyers!" Albey L.
"I have known Peter Lubin for over 30 years. He has represented me on occasion with sound legal advice. He is a shrewd and tough negotiator leading to positive outcomes and averting prolonged legal hassles in court. He comes from a family with a legal pedigree and deep roots in Chicago's top legal community. You want him on your case. You need him on your opponents case. He won't stop fighting until he wins." Christopher G.
"Peter and his team helped us with an auto fraud case. They communicated well (timely and very responsive), investigated deeply, and negotiated a very good settlement. We were able to resolve our significant issue without a large burden and in a manner that allowed for us to come out ahead. I'd recommend Peter and his team strongly!" R.J. Callahan
"Peter was really nice and helpful when I came to him with an initial question about a non-compete. Would definitely reach out again, recommended to everyone." Johannes B.