One of the biggest concerns held by Freelancers is the issue surrounding the ownership of work completed. While it is easy to remember not to reuse a Donald Duck image or copy an article written by a New York Times reporter, most Freelancers are unfamiliar with the laws surrounding ownership, copyright, and reproduction when it comes to work they 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.
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 the project I am working on 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 you have signed a written agreement that specifies the work requested is a work "made for hire."
What if the project I am working on is not considered a work "made for hire"?
If the project you are working on 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 Freelancerl, you own the rights relative to these projects and can reproduce or utilize the work completed outside the initial project scope. Employers seeking ownership and copyright protection for works not declared as works "made for hire" can request that you sign a written transfer of copyright ownership. This item may be part of the overall Project Agreement or a separate document.
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 creator plus 70 years.
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