If you or your business hire someone to create work for you, for example, to write a blog post, take some photos, compose a jingle, or design a logo, who owns the copyright in that work?
The answer depends upon several factors. Generally, the person who creates a work is considered to be the author of that work under the copyright law, but there is an exception: the work made for hire.
If a work is “made for hire,” the employer, rather than the employee who actually created the work, is considered to be the author. A work made for hire is defined by the copyright statutes as:
(1) a 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
What does this mean in plain English? While there are exceptions, generally speaking, you’ll own the copyright in works that your employees create, but independent contractors will own the copyright in works they create.
This means that if you hire a photographer to take senior photos of your twins or a web designer to create your business’s new website, you will not own the copyrights in those items unless you have a written contract to the contrary.
This underscores the importance of having a written contract either describing in detail how you can use the purchased work or granting you the copyright in that work.
Often, an independent contractor will be willing to transfer the copyright to you, but only for an extra fee. Depending on how you plan to use the work, you may want to pay this fee, or you may be content with a license that covers all your needs.
Either way, you need to have a written contract that clearly spells out the terms of the arrangement.
The contract should also discuss what happens if a copyright infringement claim is brought. Are you (or your business) legally responsible?
If the creator of the items is an employee, the answer is almost always “yes.” If the creator is an independent contractor, the answer is a bit more complicated.
Courts have held that those who have the “right and ability to supervise the infringing activity” of independent contractors are vicariously liable for copyright infringement if they enjoy a “direct financial benefit” from the infringing activity.
For this reason, it’s important that your written contract include provisions designed to help protect you in the event that the independent contractor has infringed someone else’s rights.
First, you’ll want to have the independent contractor make certain “representations and warranties,” including that the works do not infringe anyone else’s copyrights, trademarks, or other rights.
You’ll also want an “indemnification” clause that requires the independent contractor to compensate you for any harm or loss that arises in connection with the independent contractor’s actions or failure to act.
In other words, if the independent contractor infringes someone else’s copyright, trademark, or other rights, and you or your company is found liable too, the independent contractor will be obligated to compensate you (or your company) for your (or its) damages.
Please let us know if you need any assistance with employment agreements, independent contractor agreements, or copyright issues.
Photo by Thought Catalog on Unsplash
