Every day nonprofits and businesses rely on the Work-For-Hire doctrine to run their operations. Most don’t even realize it or understand what the doctrine is. But what does Work-For-Hire mean? More importantly, who owns the copyright to work-for-hire deliverables?
The US Copyright Act protects original artistic works that are set in a tangible form of expression.
Copyright is a type of Intellectual Property. The original author of an artistic work is the only one who can reproduce and earn money from their work. Think about the name: “Copyright” is the legal “right” to “copy,” or reproduce, your original work and distribute it.
As far as “tangible forms” go, Copyright Law protects nearly every creative work you can imagine. For example, songs, movies, blog posts, murals, software, video games, websites, architecture, and dance moves.
Generally speaking, whomever made (or bought the rights to) the original work owns the copyright.
EXCEPT . . .
An exception to this guideline is the “Work For Hire” doctrine.
So, What Does Work-For-Hire Mean?
Work For Hire means that the employer owns the copyright to the creative works of their employees made during the scope of employment.
Here is the official definition from the US Copyright Act:
a Work For Hire is “a work prepared by an employee within the scope of their employment” or “a work specially ordered or commissioned for use” that falls within one of nine specific categories.
If you are burning to know more about this topic, read the Circular 09 from the US Copyright Office.
Work-For-Hire Usually Applies Only To Employees
Pay attention to the careful wording.
The Copyright Act is using the term “employee” in the strict sense, meaning an actual employee and not an independent contractor.
Now, an independent contractor can create something for an employer that is a Work-For-Hire. To do so, the work must be:
- “specially commissioned,”
- be one of the nine categories of work, and
- agreed upon in writing by the parties.
About those nine categories . . . they rarely apply. Why? Because the US Copyright Act has not kept up with human creativity, the gig economy, and the types of works that companies pay others to create. For example, when was the last time you hired someone to make an atlas (this is one of the nine categories)?
That’s the reality of the matter: most copyright ownership is outlined in contracts, whether you’ve taken note of it or not.
Let’s say you are running a nonprofit organization and hire a company to design a website for you. Who owns the Copyright for the website – them or you? Answer: This is not a work-for-hire and you won’t own the copyright unless you use a written contract.
What about hiring a consultant to analyze your customer service and provide scripts for your staff to use when handling dissatisfied customers? Not a work-for-hire. You must use other contractual language to own the rights to the templates.
How about hiring a freelancer to translate your book into another language? Yes. As long as you use a written contract with appropriate work-for-hire language, you will own the copyright to the translation.
Work-For-Hire: A Recap
- If an employee creates is, you own the copyright.
- If an independent contractor creates it, you don’t own the copyright unless it falls within one of the nine categories of work-for-hire and you have a written agreement.
- Likewise, if an independent contractor creates it and it is not one of the nine categories, you need to use other contractual language to own the copyright.
Paying for something doesn’t mean that you own it.
One Work; Multiple Copyright Owners
Wait . . . there are other tricky situations. Copyright can be broken down into elements too.
You may own your logo, but not the written content on your website. This is true even if the same company created both. We see this often with photography and logos. Paying for the photo or logo doesn’t give you the copyright.
Absent a contract, the creator owns the copyright. The creator is the only person eligible to post, copy, edit, and sell the photos or logos. So, if you use photos and logos on your website, you need to own the copyright or license the right to use them.
This also happens in advertising campaigns when employees and contractors each create elements used in the final campaign. You need a contract that grants you the ownership of the content or licenses the content to you. For more information on joint works, read this post.
Furthermore, since Copyright Law only protects tangible pieces, there are all kinds of things that slip through the cracks but should still be protected.
Don’t DIY it. Call Concerto Law for Help.
As you can see, copyright ownership is not always as straightforward as you think. Work-For-Hire is just one example.
Need to know what content you can protect? Contact Concerto Law today to get the help you need! We offer legal solutions that break through the noise of bad internet advice.