Are you thinking about hiring someone to create content for your growing business? Or maybe to build a custom app or software program for you? There’s a lot of confusion when it comes to ownership of the work product at issue in this situation.
First, it’s important to understand some copyright basics. In most cases the author, or creator, of a “work” owns the copyright in that work. Copyrightable works include things like graphic designs, photographs, music compositions, paintings, software code, and website content.
But what happens if you pay someone to create a work for you, rather than creating it yourself? While you may assume that if you are paying to create a work you will also own it, that’s not always the case. Remember – the general rule is that the creator will own all rights in the work.
One exception to this rule is if the work is a work for hire under the Copyright Act. In that case, the business paying for creation of the work is considered the work’s “author” (and thereby its owner) for copyright purposes. A work qualifies as a work for hire in two scenarios:
Work created in the scope of employment. This is when an employee of a company creates copyrightable work in the scope of his or her employment and as part of their regular duties. For example, social media posts created by a graphic designer who is a full-time, salaried employee of a marketing company are works made for hire that the company owns.
Work created by independent contractors. Certain works that are specially commissioned can also be works for hire, but only if strict conditions are met. Say you hire someone to film a promotional video for you on a one-time basis. The video could be considered a work for hire, but only if it is created under an express written contract between the parties agreeing that the work will be a work for hire. If that’s not complicated enough, not all types of copyrightable works can be specially commissioned as a work for hire under the Copyright Act. The work must fit within one of nine specific categories. Otherwise, it will not be considered a work for hire, even if a written agreement between the parties says that it will be.
Businesses love working with contractors for good reason. It’s more cost-effective, and they can hire the best person for a specific job. But they often overlook the importance of their written agreements with independent contractors. Sometimes the business needs only the right to use the works being created for it and not full ownership of those works. BUT – if your business needs full ownership of something like a website, blog post, or custom software, you must have a written agreement making clear that the full ownership of any copyright is yours. Without this agreement, the author of the work maintains ownership of the work.
And it’s not always enough for the agreement to specify that a work will be a work for hire. The best practice is to make sure the agreement also assigns full ownership in any copyright to you. That way if the work does not qualify as a work for hire because it does not fit within the nine work for hire categories, you will still have full ownership of the work.
If you have questions about the contracts your business needs, schedule a time to talk to Kate today. We’d love to help!
