IP Tech Knowledgy

This article also appears in the Winter 2020 issue of  Topics.

Too many people wrongly believe that just because they pay for someone else to create copyrightable work for them, the party who pays automatically owns the resulting work. The concept of work made for hire is one of the most common, yet misunderstood, aspects of copyright law.

When hired to create any type of copyrightable work, such as software, artwork and advertising material, an independent contractor who is not an employee retains ownership of the copyright in what is created, no matter how much that contractor is paid for that work. The party paying for the work who will receive the final product does not automatically own the work of that independent contractor. Without a written assignment of the copyright from the author to the entity who requested the work, the requesting party may have a license to use the work for the purposes the parties intended, but the requesting party does not own the work outright. In contrast, when an employee, within the scope of his or her employment, creates a work, the employer is deemed to own the work as a work made for hire. No written assignment is needed for the pure employment relationship. Since ownership of a copyright can only be transferred by a written assignment — unless a situation is clearly an employment relationship, — whoever is paying for the work should be sure the author is assigning over all copyrights. If an employee is creating the work, but the assignment is not clearly within the scope of why the person has been employed, be safe and obtain an assignment of the copyright from that person.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com

This article also appears in the Winter 2020 issue of  Topics.