Copyright - Yours or Your Employer's?
Written By: Geoffrey A. Leskie
Not every copyright belongs to the individual who may have created—in the common sense of the word—the work. In some scenarios, a copyright may actually belong to an employer or a party that contracted for the creation of the work. This is referred to as a “work made for hire.” 17 U.S.C. § 101 defines a “work made for hire” as:
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them.
While that may seem fairly straightforward, the real challenge is often in determining whether an individual is an employee. The United Sates Supreme Court addressed this very issue in Community For Creative Non-Violence et al. v. Reid, 490 U.S. 730 (1989). The primary concern is the amount of control exercised by the would-be employer over the details of the created work. However, according to the Court in Reid, a number of factors are considered in every case that include, but are not limited to:
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skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
As you can see, there is much to consider when determining whether a creative work constitutes a “work made for hire” even when someone believes they are an independent contractor. This list is non-exhaustive, and no particular factor is determinative, so it is always best to consult with a qualified attorney if you have created something you would like to copyright and especially if you are about to create something at the request of someone else.
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