One of the biggest concerns held by employers is the issue surrounding the ownership of work completed. While it is easy to remember not to use a Donald Duck image in your letterhead or copy an article written by a New York Times reporter, most employers and independent contractors are unfamiliar with the laws surrounding ownership, copyright, and reproduction when it comes to work they request or are hired to complete.
When is the work copyright protected?
The issues of ownership and copyright protection begin the moment a work is put into tangible form - written, drawn, programmed.
Who owns the copyright?
The majority of the time, the creator of the work is considered the owner with regards to copyright protection and reproduction. However, there is an exception to the "creator is the owner" theory and this is when you are dealing with works "made for hire." If an item is considered a work "made for hire," then the requestor/employer, not the creator, is considered the owner/author.
What is a work "made for hire"?
"A 'work made for hire' is -
- A work prepared by an employee within the scope of his or her employment; or
- 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ''supplementary work'' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities." ("The Copyright Act of 1976," Title 17, Chapter 1, Section 101.)
Is my project a work "made for hire"?
If you are engaged in an employer-employee situation, part one of the statutory definition above applies to work completed. It grants the employer copyright ownership over the product. However, if you are in an employer-independent contractor relationship, the product can only be considered a work "made for hire" for copyright purposes if the work is one of the items mentioned in part two (instructional text, maps) and the independent contractor has signed a written agreement that specifies the work requested is a work "made for hire." Learn the difference between employees and independent contractors.
What if my project is not considered a work "made for hire"?
If the work you are requesting is not listed in part two, it does not qualify as a work "made for hire." Projects such as logo designs, illustrations, ecommerce websites, and computer programs completed by independent contractors are not considered works "made for hire." As the employer, you do not own the rights relative to these projects and cannot reproduce or utilize the work completed outside the initial project scope. Should you wish to gain ownership and copyright protection for works not declared as works "made for hire," you must request that the independent contractor sign a written transfer of copyright ownership. This document should be part of the Project Agreement, discussed with and completed by the independent professional before beginning any work. Learn about creating a Project Agreement with an independent contractor.
What is the length of copyright protection?
The length of copyright protection for works "made for hire" is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. A work not made for hire is protected for the life of the author plus 70 years.
Conclusion
When requesting project work and hiring an independent contractor, you must first decide if it is important that the ownership and copyright protection of the completed work belong to you. If so, you must determine whether your requirement qualifies as a work "made for hire" under the 1976 Copyright Act.
Answers relative to the points mentioned above will enable you to obtain copyright protection - either under the clause for a work "made for hire" or through a transfer of copyright ownership.
*For legal purposes, the term independent contractor is used in place of the Guru.com term Freelancer. |