March 6, 2015

By: Francis J. Ciaramella

Many times one person will hire another in order to draft a new piece of copyrightable work, whether it be musical, graphical, sculptural, etc.  However, should this new work become popular or valuable, a dispute will often arise as to who owns the original and its accompanying copyrights, such as the right to reproduce the original work.

Naturally, the one who commissioned the original work will leap to the conclusion that they own such rights.  Unsurprisingly, the hired person will quickly arrive at the opposite conclusion.  Who is ultimately right is a question of whether the work was created as a work made for hire.  If it is a work made for hire, then the person who commissioned the original work owns not only that work, but also the copyrights to that work.

Under section 101 of the U.S. Copyright Act, a work made for hire is defined as:

  1. A work prepared by an employee within the scope of his or her employment; or
  2. A work specially ordered or commissioned for use as a contribution to a collective work.

Unfortunately, this is often a question of fact, which will be the subject of vigorous debate.  At what point does a person become an employee for the purposes of copyright law?  Courts have looked to the degree of control that the hiring person exercises over the hired person:

  1. Does the hiring party retain any right to control the finished product?
  2. Does the hiring party actually wield any control with respect to the creation of the work?
  3. Does a principal-agency relationship exist between the parties?
  4. Is the hired person a formal salaried employee of the hiring person?

Fortunately, there is an alternative to involving oneself in expensive litigation to determine the answer to this question.  Contracts involving the creation of copyrightable subject matter can be carefully drafted to make sure such copyrightable works either vest to the hiring party, or to the hired party.

For additional information regarding copyrights and works made for hire, or if you have any other intellectual property law questions or concerns, please feel free to contact our office at the telephone number above.

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