When would copyright ownership come into question?
When you create your own material (a photograph, a novel, a poem), you automatically own it. Or, when an employee creates material (web design, sales copy, blog posts) during the scope of the employment, the business automatically owns it.
From the US Copyright Office’s literature on copyright ownership [emphasis mine]:
Only the author or those deriving rights from the author can rightfully claim copyright. There is, however, an exception to this principle: “works made for hire.” If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.
But what constitutes a “work make for hire”? There are two ways the creator of something copyrightable would not be the automatic owner:
- The creator was an employee doing regular work for the employer. (For example, Click&Copyright owns this blog post, not me personally.)
- The creator is a third party, and
- the work was commissioned or specially ordered, and
- a work-for-hire agreement has been signed by both parties.
[Note: The agreement must take place before the work has been created—if not, a copyright assignment form might be a better fit.]
When might a work for hire agreement be necessary?
Here are a few examples in which a WFH agreement would serve to clear up any ownership issues before they arise.
- A business hires a freelance/independent contractor designer to create a corporate logo.
- An author hires a writer to create a back cover blurb for her novel.
- A couple hires a photographer to take wedding photos and wishes to own the resulting intellectual property.
- An employer hires an employee to come in on the weekend and create something extraneous to the actual employment (e.g., the marketing guy is a photographer on the side and he takes head shots of management after hours).
Any time you pay a non-employee (someone to whom you do not send a W2, generally) to create something for you, a work for hire agreement will ensure that it belongs to you—not the worker you hired.
When is a work for hire agreement not necessary?
In many cases, a WFH agreement should not be used, either because copyright ownership is already certain or because another form might be more appropriate. Some of these situations might be:
- A business wants to appropriate the rights to a logo the designer has in his portfolio. (As described above, it is too late to use a WFH agreement if the work already exists; now, a copyright assignment form might be better.)
- The contract between you and the third party already specifies that you are to own the resulting copyright.
- The work is a result of a typical employee/employer relationship.
[Recommended reading: "Independent Contractor (Self-Employed) or Employee?," IRS.gov]
The bottom line is, whenever you commission a piece from someone, if it’s important that you own the copyright (and it isn’t always, by the way; Click&Copyright has only reproduction rights to the images in this blog post, which works out just fine for us), require a work for hire form right away, before the project has begun.
Note: Your artist is free to say no, by the way—you can’t force someone to sign a work for hire agreement and thereby relinquish his or her intellectual property rights. And if this is the case, aren’t you glad you got that issue out of the way now, before the work you would have fought over ever came into being? Now, go find another artist who will agree to let you own the material (and be prepared to pay for the privilege).
[Click&Copyright offers fully customizable work for hire agreements, both general purpose and musician-specific, to help you manage your intellectual property rights!]
[Pssst: I'm not a lawyer, and this post is not intended to replace legal advice from an intellectual property attorney familiar with your situation.]