Lesson 3: Who Owns a Copyright?

The general rule of law is that the person who creates a work of art or authorship is the one who owns the copyright in that work, unless that person has transferred the rights by written agreement (for example, Assignment of Rights or Grant of Rights) to someone else or when it’s a work made for hire. (For a sample Assignment of Copyright Agreement to customize for your own use, see appendixes in this book and the companion CD.) When two or more people create a work, they jointly and equally own the copyright in that work, unless an agreement exists that states different terms. When minors create copyright-protected works, although they can claim ownership, the law can be a little tricky, because state law governs the extent to which minors can enter into and be held liable for a contract. Therefore, it’s best to get legal advice before entering into an agreement of any kind with a minor.

Works made for hire exist in two situations:

 

1. when a work is created by an employee within the scope of his or her employment

2. when a work is specifically commissioned in exchange for monetary value and a written agreement exists that states the relationship is a work made for hire.

 

Additionally, for a commissioned work to be considered a work made for hire, the work must fall within one of nine categories (see also U.S. Copyright Information Circular 9, available in the appendix of the CD):

 

1. a contribution to a collective work, for example, an article for a magazine

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

9. an atlas.

 

Let’s look at some real-world scenarios in the following questions.

Question 1

You hire a new employee to design and develop a video for you to use as a marketing tool for potential new clients. Who owns the rights to that video, you the employer, the employee, or both of you in a joint ownership?

Answer

The employer owns the rights, if the work was performed by an employee within the scope of the employment. How do you determine the employee–employer relationship? If you’re the employer, you pay the employee a salary, provide him or her with benefits, and withhold taxes from the pay. You exercise dominion and control over the employee’s work and the way the work is done. Therefore, if the video was created by an employee within the scope of the employment, you, the employer, own the rights to that video.

Here are some other employee–employer examples of works made for hire:

• a software program created by a staff programmer within the scope of his duties

• a magazine article written by a staff writer within the scope of her employment

• an employee handbook written and designed by a staff graphic designer and a staff copywriter.

Question 2

You hire a graphic designer to develop a logo and marketing materials for your new company. Who owns the copyright in the design of the new marketing materials: you, the graphic designer, or both of you?

You hire a photographer to photograph your wedding. Who owns the copyright in the photos: you, the photographer, or both of you?

You hire a web designer to create a website. Who owns the copyright in the website: you, the web designer, or both of you?

Answer

Regarding the graphic designer, the photographer, and the web designer, unless you have a written agreement that states that your relationship with them is a work made for hire, then sadly they, not you, own the rights to the work created. If you hire an independent contractor to create a work of art or authorship, have him or her sign a work-made-for-hire agreement before the work begins. If you’ve already entered into a relationship and the product has been created, ask the contractor to transfer his or her rights in that work to you. Caveat: When you ask after the work has been done, the copyright holder can refuse to accommodate you. Therefore, requiring an agreement before the work is done gives you more leverage.