As a general rule, the author of a work owns the copyright.
However, under the doctrine of “work made for hire,” the employer owns works created by its employees in the scope of their employment.
The courts use the following factors in determining whether an employee created a particular work with the scope of employment:
- Whether the employer had the right to direct and supervise the manner in which the work was being performed
- Who started the creation of the work
- At whose expense was the work created under
- Time spend on the work
- Who owned the facilities where the work was done
- The nature and amount of compensation received by the employee
Without a Work Made for Hire Agreement
If the court finds that the worker is a independent contractor, then, without a work-made-for-hire agreement or an express assignment of the copyright, the creator (not the employer) has the copyright ownership of the work.
The company or business that pays for work created by an independent contractor will own the work as a work made for hire only if:
- There is a written agreement that states that the work is a work “made for hire,” and
- he work falls into one of the 9 legal categories of specially commissioned works made for hire.
Work Made for Hire
Independent contractors are typically asked to sign agreements assigning to the company/business that hired them all of their rights to any works they produce during their service and the copyrights related thereto.
Without such a written assignment, the independent contractor will own his or her works, and the party that paid for them may be entitled to only his or her single copy.
What to Do
In conclusion, it is not always clear whether a worker is an employee or independent contractor and whether the employee is acting within the scope of his or her employment. Thus, both employees and independent contractors who create copyrighted works should be required to assign an agreement assigning to their employer any rights they may have in their works.
Independent Contractor Agreement
Independent Contractor Agreement is perfect for companies or businesses that are looking to hiring an indepedendent contractor on a temporary basis. Hiring an independent contractor is a great way for start-up businesses to acquire a specialized talent that is needed for a temporary assignment.
Sam Mollaei, Esq. from Mollaei Law can be reached @ (818) 925-0002 or by visiting www.mollaeilaw.com