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Works Made For Hire And Copyright Assignment To An Employer

Copyright2

Copyright law protects a creator’s eligible creative work as soon as it is created. Employees in creative fields of work often produce work product that is immediately protectable under copyright law. The ownership of the intellectual property protected in this way can become a source of dispute if the employer and employee do not have a clear understanding or agreement of who owns the intellectual property rights.

Employers often handle the issue of employee’s copyrightable creations by having the employees sign agreements assigning the copyrights to the employer. This is done as part of an employment contract at the start of the employment. When this is done, the employee is expressly assigning his copyright to the employer, and the employer possesses the full rights under copyright law.

The work the employee creates is known as a work for hire. A work made for hire in the scope of an employee’s employment does not have to be expressly assigned for the employer to acquire full rights. However, it makes good business sense for an employer to get such express assignment from its employees. This may help minimize the employer’s risk of lawsuits from the employees later on.

However, there is a limit to the kind of works that are covered under the copyright assignment to an employer by an employee as a work made for hire. A creative work made under the employee employer context is only covered as a work for hire if it is made within the scope of the employee’s employment.

For an employee, a work is made within the scope of employment, and therefore qualifies as a work for hire if:

  1. it fits within the kind of work the employee is hired to create or is within his job description;
  2. it is created within the employee’s work time and space; and
  3. it is made, at least partially, for the purpose of serving the employer.

If the employee created work fits this description then it is a work for hire and the employer owns the copyright to the work as though the employer was the author.

There are different requirements for a work to qualify as a work made for hire if the person creating the work is an independent contractor instead of an employee. In order for a work made by an independent contractor to be assigned to an employer, it needs to have been created as a special order for the employer or on commission by the employer, and needs to fit within certain categories of works.

The designation of a person as either an independent contractor or an employee is not based solely on the label the employer puts on the individual. The relationship between the employer and the person is reviewed more closely to determine what kind of relationship exists.

Contact an Experienced Copyright Attorney

For more information on works made for hire in the employment or independent contracting context, and how you can protect your intellectual property rights, contact a knowledgeable copyright attorney at McCabe Rabin, P.A. in West Palm Beach, Florida.

Resources:

copyright.gov/circs/circ09.pdf

oyez.org/cases/1988/88-293

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