Government Contracts Legal Blog

Copyrights, Intellectual Property, and Work Done for Hire

Posted by Brandon Selinsky on May 12, 2015 11:52:01 AM
Brandon Selinsky

Is Work That Was Created for My Employer Eligible for Copyrights?

When you create a work that is normally protected by U.S. copyrights law, you normally assume that protection yourself, as the creator. But this is not always true.

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author and owns all of the rights that comes with the copyrights unless the parties have expressly agreed otherwise in a signed document.

A work made for hire is either of the following:
  1. Work prepared by an employee within the scope of his or her employment; or
  2. a work specially ordered or commissioned for use:
    • as a contribution to a collective work,
    • as a part of a motion picture or other audiovisual work,
    • as a translation,
    • as a supplementary work,
    • as a compilation,
    • as an instructional text,
    • as a test,
    • as answer material for a test, or
    • as an atlas specially ordered or commissioned for use.

For a work in part ‘2’ to be considered a work made for hire, there is an additional requirement that the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The primary difference here is that, if you create the work within the scope of your employment, the ownership of copyrights defaults to your employer. If your work is commissioned by another (and falls into a category listed in part ‘b’), ownership of copyrights defaults to you unless you sign a written instrument that expressly states otherwise.

In other words, if you are commissioned to, say, photograph an event, your customer does not automatically retain the right to make as many copies as he or she wants. If you create a design for a magazine, the magazine does not have a right to your design templates unless you agree otherwise. Knowing this in advance and knowing what your industry standards are can help better negotiate a deal with a potential customer.

Whether you are producing a work as an employee or an independent contractor can make all the difference in whether you retain rights to that work. Sometimes the line between the two gets blurry and determining whether you are an employee is not so straightforward. There is no precise legal standard for determining whether you are an employee for the purpose of part ‘a,’ but courts have applied general agency law in the analysis and the U.S. Supreme Court has provided three non-exhaustive factors to consider:

  1. Does the employer have control over how the work is done, and was the work done at the employer’s location with the employer’s equipment?
  2. Does the employer control the employee’s schedule in creating the work, have the right to give the employee other assignments, determine the method of payment, and hire employee’s assistants?
  3. Is the employer in the business of producing such works and does employer provide benefits and withhold taxes?

If you are unsure whether you are creating a work made for hire, either as an employee or an independent contractor, you should spell out the rights each party will enjoy as explicitly as possible in writing and have both parties sign the document.

Need more information on copyright law and intellectual property? Give our attorneys a call and learn how we can help your business understand this complicated area of law.

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Topics: Government Contracting, Intellectual Property

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