Archives for January 2015

Copyright Ownership in the Workplace: Work Made for Hire

small business word cloudAs a small business owner, you have probably hired a contractor or employee to design your website, write articles, copy, and incorporate pictures. You may also have had additional help in promoting and branding your company. If you received assistance in these tasks, you might not be the owner of the copyrightable work product created by the contractor or employee. In the United States, copyright ownership generally vests in the creator of the work. If you contracted with a web designing firm to design and populate your website, you are not the creator of the site content. In order to claim ownership of the copyright work, you must include a work made for hire clause in your independent contractor and employment agreements. Retaining original copyright ownership is more advantageous than licenses and assignments. You can avoid contractual complications and restrictions that accompany licenses. Work made for hire copyright expires 95 year after first publication or 120 years after creation; this expiration is considerably longer than the 35 years statutory termination for certain licenses and assignments.

Independent Contractors

An independent contractor owns the copyrights to his or her work, unless a written agreement states otherwise. You may commission an independent contractor to do the following work while retaining ownership:

  • Contribution to a collective work
  • Part of a motion picture or other audiovisual work
  • Translation
  • Supplementary work
  • Compilation
  • Instructional text
  • Test and the answer material
  • Atlas

Notice that the commissions do not encompass all copyrightable works. You cannot claim original ownership of some copyrightable works (such as computer software) created entirely by an independent contractor. Instead, you should consider hiring an employee to prepare such work.

Employees

A copyrightable work prepared by an employee is usually considered the employer’s copyright. However, the employer only owns the copyright if the work was prepared within the scope of employment. An employee may be able to contest the employer’s ownership of the copyright by claiming that the work does not fall within his or her scope of work. In these cases, the court usually asks three questions to interpret the employee’s scope of work:

  • Was the employee hired for the purpose of preparing copyrightable works?
  • Was the work created during the employer authorized time and space limits?
  • Was the work created (at least in part) to serve the employer?

As an extra precaution, you may add a work made for hire clause and an assignment clause to employment agreements to secure the company’s rights in works produced by its employees.

Prioritizing proper copyright ownership in the beginning can save numerous headaches in the future. If you wish to pursue an enforcement action against infringement or sell your company, you will likely need to make representations regarding copyright ownership. Managing copyright issues years down the road can be expensive and time-consuming in time-sensitive situations.