Published in the Union Leader (2/25/2018)
Q. If I paid someone to create artwork for me, does that mean I own it and can use it in any way that I want?
A: Not necessarily. The simple act of payment does not mean you own all rights, title and interest in artwork or other copyrightable work. Under U.S. Copyright law, the author (or authors) of a work is the initial owner of the work and copyright therein.
The major exception to this rule is referred to as “work made for hire.” Under this exception, an employer (or other person for whom the work was prepared) is considered the “author” for the purpose of determining copyright ownership. Unless the parties have expressly agreed otherwise, the employer owns all of the copyright in its employee’s work that falls under this exception.
But we’re getting a little ahead of ourselves here.
An important piece of the “work made for hire” exception is that it applies to works prepared by an employee within the scope of his/her employment (or by independent contractors, in certain situations that we’ll touch on below).
This is where the analysis can become more complicated. The terms “employer” and “employee” here don’t exactly conform with their commonly understood meanings. The determination of what constitutes an “employer-employee” relationship as it relates to copyright ownership involves questions of control by the employer (over the work and/or over the employee) as well as the status and conduct of the employer.
The second piece of the puzzle regarding the “scope of employment” can also be tricky. An easy example may be when a software programmer working full time for a software firm creates a software program that is within the programmer’s duties for the company. However, not all situations are so straightforward.
If the creator prepared the work as an independent contractor/freelancer, the hiring party might own the copyright to the work under certain conditions. The work in question can be a work made for hire only if the work: (1) was “specially ordered or commissioned,” (2) falls into one of nine categories of works, and (3) there is a written agreement between the parties stipulating that the work is a work made for hire.
The analysis of copyright ownership is often complicated and always fact-specific. It may be that some form of agreement would be the cleanest way to ensure everybody is on the same page and that you have the rights you think you do and the rights you want. A copyright attorney can help you sort through the facts.
Catherine Yao can be reached at [email protected].
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.