Wait, Who Owns It?

“Work for hire” Three simple words. I know what each means independently, but as a phrase they take on a special meaning in copyright law.  That special meaning, however, most do not know.

In copyright, the creator of the creative expression of an idea (you know, the thing that is copyrighted) is the default owner. So when I hire a graphic designer to redesign our logo, the default is that they own the design unless something in writing changes that.  Even if I paid her.

But, but, but… Maybe I want to own it.  Well, there are two way address it.  First, I can have her assign it to me after the fact.  That may mean I have to pay her extra, or maybe it is part of the contract that on the final payment she will assign it to me.  Or if we had done contract ahead of time, we do a “work for hire” clause from the beginning.

This clause specifically states that the work being created is “work for hire” so that the party paying is the owner, not creator. if The parties must expressly agree in a written instrument signed by them that the work shall be considered a work made for hire before the work is created.  No backsies!

Also, in order to be a work for hire, the creation has to be a work specially ordered or commissioned for use and be one of the following:

  1. as a contribution to a collective work,
  2. as a part of a motion picture or other audiovisual work,
  3. as a translation,
  4. as a supplementary work,
  5. as a compilation,
  6. as an instructional text,
  7. as a test,
  8. as answer material for a test, or
  9. as an atlas.

So what’s the take-away?  Know who needs to own it and settle it from the beginning.  Maybe it is a work for hire or an assignment at the end, but if you figure it out ahead of time, you at least have the option.

Please note that in an employment situation, a work is considered made for hire, and the employer is considered the author even if an employee actually created the work if the work was created within the scope of employment.  We’ll talk more next week about determining an employee vs. an independent contractor in at least this setting.

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