Intellectual Property Venn Diagram includes Trademark, Patent, Copyright

Frequently, independent contractors are hired to create content for companies, but who owns this intellectual property that is created by the independent contractor? This content can be photos, written content, computer code, videos and anything creative.

Typically, you would look to the contract to specify who has the ownership of the copyright. The contract would be controlling over any of the default laws regarding the ownership of the copyright. But, what if the contract does not specify? How do you determine copyright ownership in that case?

For copyrights, we have to look at Federal Law. By default, the owner of the copyright is the original author, but there are many exceptions to that rule. One such exception is the “work made for hire” exception, where contracting companies can claim ownership of the work automatically as the company instead of the original author. This exception encompasses employees within the scope of his or her employment and “a work specially ordered or commissioned for use:

(1)   As a contribution to a collective work,

(2)   As a part of a motion picture or other audiovisual work,

(3)   As a translation,

(4)   As a supplementary work,

(5)   As a compilation,

(6)   As an instructional text,

(7)   As a test,

(8)   As answer material for a test, or

(9)   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.”

To simplify, the work made for hire exception is only available with employees in the scope of their employment and independent contractors for the above listed reasons. The work made for hire exception also only applies if the parties expressly agree to this in a written instrument signed by both of them.

If the material falls into this exception, then the company will own the copyright; however, much to the chagrin of the contracting company, independent contractors are entitled to the ownership of the copyright if there is no written agreement stating the work was work made for hire or that the copyright will be transferred to the contracting company.

In the case where the independent contractor is entitled to ownership of the contract either because the contract did not specify or the independent contractor otherwise retained ownership, the contracting company will be entitled to a license to use the contracted work for the specific purpose contemplated in the contract. If there was no purpose written into the contract, the courts will be required to determine what the license is for.

This area of law is incredibly fuzzy and can be avoided by clearly laying out what rights the contracting company will have and what rights the independent contractor will have in the written agreement. Should there be no written agreement or the agreement does not specify, there may be costly problems later on in determining what the contracting party may and may not do with the copyrighted materials.

For example, when a couple hires a wedding photographer, the wedding photographer would, by default, have the copyright on all pictures taken at the wedding, but what rights do the bride and groom have? Can they post the pictures on Facebook? Can they send out thank you cards with their pictures on them? These answers are unclear absent a written agreement specifically laying these out.

The moral of the story is that in order to be sure you have the rights you believe you have, you will need a written agreement specifically describing what your rights are when it comes to the copyrighted materials. If you’re about to sign a contract, and it does not list the copyright information in great detail, take a step back and think about what you will want to use the content for in the future. Be sure to get all of the rights you’re contracting for up front because renegotiating later, or even going to court, can be very costly to you and/or your company.

For more information, contact us at richard@lawplusplus.com or (919)912-9640.

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