Generally, the person who makes a work is considered the copyright owner. However, something employers and employees don’t often asses on is who owns a work created for an employer on behalf of an employee. However, this is where the ownership of a copyrighted work comes in dispute.
Usually, any work create by an artist as a result of the course and scope of the artist’s employment with a company is company property. This is called the “work made for hire” doctrine which means that if a work is made for hire, the employer is considered the copyright owner even if the employee actually created the work.
In order to be labeled and held as “work made for hire,” the work must be prepared by an employee within the scope of his or her employment. No written agreement is necessary to label the ownership. For example, an artist who creates a work as an employee has no copyright ownership of a work he does for his employer, but he does keep his copyright interest in works created outside of his workplace.
However, things get a little bit more unclear when the relationship between the two parties isn’t an employee-employer relationship. Independent contractors are often hired by employers to create works on behalf of the employer. Unless there isn’t an express agreement that the work is work made for hire, the independent contractor can still keep some ownership rights in the work. In this instance, the work is considered a work made for hire and owned by the employer if the work is specially made for use as a collective work, or as part of a movie or other audiovisual work, or as part of a compilation. Thus, an agreement alone is insufficient to make the work a made for hire.
For example, if an artist is hired as an independent contractor and the artist and the employer have a written agreement clearly stating that the work is work made for hire and the employer expects ownership. However, since the work does not fall within one of the nine codified categories as indicated in 17 U.S.C 101, the the work will likely not be a work made for hire and the artist will keep the ownership interests of the work.
Mollaei Law is a law firm representing new and existing artists. We cater legal services to new and emerging artists and businesses to further their career. For more information, visit http://www.mollaeilaw.com/copyright-trademark or give us a call at (818) 925-0002.