In general, the creator of a work — whether it is musical, verbal, visual, digital or another form — is entitled to the copyright. However, federal law makes exceptions for “works made for hire.” These are works created by employees during the course of their employment or by independent contractors. In those cases, the employer or the person or company commissioning the work may be the copyright owner. However, independent contractors may retain their ownership if certain conditions are met.

While an employer automatically owns the copyright of work created by an employee, an independent contractor generally retains ownership unless their work falls into one of nine categories that the Copyright Act considers made for hire: a contribution to a collective work, a part of a motion picture or audiovisual work, a translation, a supplementary work, a compilation, an instructional text, an atlas, a test or answer material for a test.

If the agreement or contract commissioning the work is silent on copyright of works not within those nine categories, the independent contractor generally retains ownership. But some agreements contain ambiguous language that could suggest the parties’ intent to consider the works made for hire. If this intent is unclear from the agreement or the surrounding circumstances, a court deciding a dispute over copyright ownership or infringement will consider a number of factors, including:

  • Who controlled the means by which the work was created
  • Which party provided the tools necessary to produce the work
  • Where the work was performed (i.e., at the hiring party’s workplace or the creator’s premises)
  • Whether the hiring party withheld taxes or provided employee benefits
  • Which party controlled the hours worked by the work’s creator
  • Whether the creator of the work was paid hourly or per project

The more that these factors suggest a relationship closer to employment than to independent contracting, the more likely that made-for-hire status will be found.

For these reasons, it is imperative that independent contractors thoroughly review any agreement or other commissioning document before signing it and commencing work. A contract or rider may contain a provision by which the contractor acknowledges the hiring party to be the copyright owner or agrees to assign the copyright ownership to the hiring party. Rather than give up the rights to the work entirely, an independent contractor may be able to negotiate an agreement in which they grant a license to the commissioner for limited use of the work. This arrangement allows the creator of the work to retain the valuable ownership rights, which can be licensed in the future to other parties in exchange for royalties.

If you are an independent contractor who is presented with an agreement that may affect your copyright, the attorneys at Hemmer DeFrank Wessels, PLLC in Fort Mitchell, Kentucky can review it and take steps to make sure your rights are protect. To schedule a consultation, call us at [ln::phone] or contact us online.