Copyrights on Work Made for Hire

How do you determine the copyright ownership for the work of an employee or contractual employee? It’s an important question to consider for anyone involved in marketing creative works.

Copyright issues should be carefully considered and agreed upon prior to the creation of any creative work when businesses or individual contractors are dealing in intellectual properties.

The works involved may be software, video, scripts, art, design, writing, or any other work produced as the result of the effort and intelligence of an individual rather than the production of a machine.

Generally speaking, the copyright for such works remains with the individual who created the work – be it video, written word, software program, web page or graphic design – unless that person is creating that work as an employee of a company. Then it is considered “work for hire.”

If a person is determined to be an employee of a person or company or is determined to be working under contract or commission for a particular work, then the work is considered work for hire, and the copyright and trademark belongs to the employer.

Then what constitutes work for hire? Some of the circumstances under which intellectual property is considered work for hire and therefore the property of the company or employer are:

• When an artist, writer, etc. agrees to contribute to a collective work. This is often done for agreed upon financial consideration or for other consideration such as publicity.
• If a person, often a writer, creates a prologue, introduction, review or some other type of supplementary work to another’s creation.
• The translation of an original work into another language. The translator does not retain copyright privileges.
• When a person makes a contribution to a motion picture or other type of audiovisual production.
• If the work is a compilation of a variety of other works.
• When a person contributes to an instructional textbook for use in the classroom.
• The creation of an exam, a test, or a quiz or the creation of the answer key to such materials.
• Contributions to an atlas or similar map-based reference book.

Distinctions sometimes get blurred when determining the employee status of a creator under certain circumstances.

Some of the circumstances that may cause a work to be considered to be the property of an employee rather than the company or employee are:

• If the employee created the work on his or her personal time, not paid company time. This applies even if the employee uses the created material at the place of business. It may apply even if the employee used the office or workplace, but did the work after paid hours.
• If the creator was under contract for a specific piece of intellectual property, but used ideas from that work to create a separate, distinct work. The separate work may remain the property of the creator.

As many employees have learned to their financial loss, if they are employed by one company, anything they create on company time, even a design or work not specifically requested by the employer, is considered work for hire, and the property of the employing individual or company.