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Who Owns the Copyright? Work-Made-For-Hire Edition

March 02, 2020
Post by Brandon W. Clark

One of the questions we regularly receive tends to be something along the lines of, “If I pay someone to build a website/take a picture/make a video/create marketing content/design a t-shirt/etc., don’t I own the copyright in that work?” The short answer is, probably not unless you have a written agreement with them. The more detailed answer is the copyright in a work vests initially in the author or authors of the work. But in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights in the copyright.

So, what is a “work made for hire”? Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:

1) a work prepared by an employee within the scope of his or her employment

or  

2) a work specially ordered or commissioned 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, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, and if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Notably, the nine categories of works listed in part 2 of the definition ( 1) a collective work, 2) a part of a motion picture or other audiovisual work, 3) a translation, 4) a supplementary work, 5) a compilation, 6) an instructional text, 7) a test, 8) answer material for a test, or 9) an atlas) are all interpreted rather narrowly.

For example, because I am an employee of McKee, Voorhees, and Sease, and I’m writing this blog in the interest of my ongoing and continued employment, any copyright rights in this blog would be owned by my employer. While, alternatively, if this was a blog about who I thought was going to win the NBA championship this year, and thus not prepared within the scope of my employment, my employer would not have any claim to the ownership of that work. That’s a straightforward example.

The more concerning example happens when you or your company hire a third party to prepare any work, such as a website, marketing materials, or photographs. If the works fall within one of those nine enumerated categories listed above, you still need an agreement signed in writing to effectuate that relationship and ensure that the work is considered a work made for hire. If the work(s) does not fall within one of those nine categories, the original author will likely be consideredthe copyright author and owner.

Does this mean you can’t own the copyright in something that you or an employee didn’t create? No. It simply means that you need to enter into an agreement with the designer/developer/photographer transferring or assigning ownership of the work to you. And the language included in this agreement, needs to be drafted carefully. It should lay out and assert a work for hire relationship, but it should also include copyright assignment and transfer language so that you have a safeguard in the event that the work is determined not to fall within one of the nine enumerated categories, and thus, outside the scope of a work made for hire.

Brandon W. Clark is the Chair of the Copyright, Entertainment & Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com


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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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