Who Owns the Copyright?

Who owns the copyright when you are hired to work for another person or company? Let’s discuss: Work for Hire Doctrine

You’ve been hired to create some artwork. Happy days! You create your masterpiece, send it to the buyer, and get paid. Then you follow up and find out that the buyer is using your art in a way you find highly offensive. You reach out and tell him that’s not okay, but he comes back and says that he owns the copyright, so he can do whatever he wants, and you can lump it. What do you do?

This is just one example of issues that can arise when it’s unclear who owns the copyright. Typically, the person who created the artwork (or book, movie, song, or other creative work) is the author, and therefore the initial owner. However, there are two exceptions to this rule, and both fall under the “work for hire” doctrine:

  • The work is created by the employee within the scope of his or her employment OR
  • The work is specially ordered or commissioned as a work for hire 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 (e.g., forewords, afterwords, illustrations, maps, charts, tables, editorial notes, musical arrangements, bibliographies, etc.)
    • As a compilation
    • As an instructional text
    • As a test
    • As answer material for a test
    • As an atlas

In both cases, the employer/buyer is considered the author, not the person who actually created the work.

Believe it or not, the second exception (the “independent contractor” rule) is easier to figure out than the first one. For independent contractors, there has to be a clear agreement that this is work for hire. Additionally, the work has to fall into one of the stated categories; a specially commissioned sculpture cannot be a work for hire if the sculptor is an independent contractor.

The first exception is the one that gets all the courtroom limelight because “employee” is not defined by the statute, and the courts apply a multi-factor test rather than setting down a clear rule. (For those who are wondering, AB 5 does not apply here because that is a California state rule regarding employee benefits; copyright ownership is a federal law question). For this reason, whenever there’s a question of copyright ownership, the person or company who purchased/commissioned the work will claim an employer-employee relationship.

How can you make sure this doesn’t happen?

The test the courts use has several factors, which all boil down to the level of control the “employer” had over you, your workspace, and the creative work. I can go through all of these factors, but there’s a much easier solution: have a contract. It doesn’t have to belong or elaborate; you don’t even have to involve a lawyer if you don’t want to. The two parties just need to agree, in writing, that you are an independent contractor, you are creating this specific work for the other person, and you are the author and owner of the copyright. There are other terms that you can include (payment, terms of the license, etc.), but those three terms are enough to establish copyright ownership. Even if you want to give the other person the copyright, it’s still better to have it in writing, so there’s no confusion down the road.

If you have more questions about the work for hire doctrine, or you would like help drafting an agreement, you can reach me at kaway@kawaylaw.com.

Kelly Way Attorney pic and bio Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar and an aspiring writer of young adult fantasy novels.

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