In general, people own the copyright rights to the works they create. However, an exception exists when it comes to a work made for hire. This copyright doctrine says that an employer owns the rights to a work its employee created when it was created under the scope of a written employment agreement or, in some cases, a commissioned work. If work falls under the scope of general job responsibilities, such as writing a company newsletter, work made for hire agreements are typically not necessary. Read on for the basics of what employers need to know about works made for hire.
Time on and Off the Job
A general rule of thumb is that if an employee creates a work during his or her own time, copyright rights belong to him or her and not to the employer. For example, an employee who spends his or her work hours focusing on creating and writing a newsletter for the employer or taking pictures for the employer does not retain copyright rights to the work.
When to Use Written Agreements
No written agreement is required when employees create works under the scope of their regular work agreements. For example, if a job responsibility calls for employees to regularly write newsletter articles, employers are not required to have employees sign work made for hire agreements to give up rights to the newsletter articles. In fact, written agreements are primarily reserved for independent contractor situations, but even in many cases of typical employer-employee relationships, employers like to ask their employees to sign work made for hire agreements anyway. Employers who do this often also ask employees to sign non-compete clauses and non-disclosure clauses; if you are an employer who likely will ask employees to sign these two types of clauses, you may want to investigate if a work made for hire agreement would be beneficial for resolving potential ambiguity down the road.
As a best practice, employers should try to wait for any work to start until after a work made for hire agreement is signed. Otherwise, the conflicting dates might lead to ambiguity over who owns copyright rights.
Nine Areas in Copyright Statue
Copyright law covers nine areas in which a work made for hire applies.
It is important that you as an employer are aware of these nine areas because even if you have an employee sign an agreement for a work made for hire, it does not apply when the work falls outside the nine categories above.
Three Good Practices to Follow
Employers should follow three practices when they are considering work made for hire that does not fall under the scope of an employee’s regular duties and they are hiring that person for that project specially. Say that a company is hiring someone to create a software program.
In cases such as software development, work made for hire agreements typically have the employer or contractor assign all rights, title and interest to the employer. This includes provisions such as copyrights and patents.
It is often useful for employers to consult lawyers to make sure a work for hire agreement is valid and has covered all necessary bases. In the absence of such agreements or when agreements are vague, courts often side with the person who created the work: the employee or the independent contractor.
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