Copyright law protects works of original authorship including literary, dramatic, musical, and artistic works. Generally, the “creator” of a work is considered the legal owner and ownership attaches as soon as the work is fixed into a “tangible medium.” In a business context, a work may be content, e.g., text, video, art, logos, or photos created for marketing purposes, code developed for a website, apps or software, or manuals written for training purposes.
Since copyright attaches when a work is created, it is important to understand who owns the copyright and whether or not an assignment of rights is necessary for the copyright to reside in the hands of the intended owner.
Below are common scenarios where a copyright assignment may or may not be necessary.
Employees
All works created by an employee within the scope of their employment are owned by the employer. Be advised, the term “employee” carries a specific legal definition. To determine if the creator is legally considered an employee, assess the same factors considered by courts, such as whether the creator used their own tools, used the employer’s facilities, was paid a flat fee or royalty rather than hourly or salary, received insurance benefits, was treated as employee for tax purposes, etc.
Independent Contractors
Just because a work was commissioned does not mean it is legally considered a “Work Made For Hire” (“WMFH”). In fact, the designation “WMFH” is somewhat misleading because the doctrine does not apply in every situation where a company commissions a work. Rather, the WMFH doctrine pertains to only the following specific types of commissioned works: contribution to a collective work; part of a motion picture or other audiovisual work; a translation; a supplementary work, a compilation; an instructional text; a test; answer material for a test, or an atlas.
Meaning, a logo, website design, blog post, article, etc., commissioned through an independent contractor may not be considered a WMFH, and transferring ownership through a written assignment agreement is absolutely necessary.
Other Third Parties
If you have a close relationship, e.g., creative spouse, partner, family member, or friend who wants to contribute their talents to your business, contracts and assigning IP rights are often not top of mind. However, copyright law does not consider the original intent of the parties with regard to ownership. Unless the creator is an employee, or it the work is a true WMFH, the creator of the work is the owner. Period. This means that you need to get that friend, spouse, etc. to sign over all right, title, and interest in and to the work they created for your business.
As you can see, copyright ownership is nuanced. When in doubt, an employer or commissioner should have the employee/contractor execute a written agreement transferring any possible ownership interest to the employer.
Please contact us at iplaw@evoke.law with any questions about the ownership of your creative works.
