How to Evaluate Ownership of Copyrights Based on work made for Hire Principle?
If you are commissioning any work, it is essential that you understand who owns the work. For instance, unless there is an exclusive agreement before the action starts, someone who contributes to your site or book can post that work elsewhere without seeking permission from you. Worse still, you may need to seek the person’s approval if you want to adapt the work elsewhere. Besides that, if you hire someone as an illustrator on your short stories, you need to have an agreement with them. Otherwise, the illustrator becomes a coauthor. These oddities all fall under copyright law. Her at www.pandapatent.com, we have decided to clear things up a bit for you.
Do I own Work Once I pay for it?
Even in cases where you have exclusive rights to use work, it does not always qualify as “work for hire.” In most cases, even with an implied license to the job, your scope of rights will not be clear. It is thus best to have work for hire agreement in place before any work starts.
Understanding Work for Hire
One way you can acquire the rights to someone’s work is via licensing. However, a license does not give you full ownership of the work. It only gives individual rights to utilize the work. The rights can be non-exclusive or exclusive. Besides that, a right can be limited by territory, time, or media. As a rule, most hiring parties will opt to obtain rights via work made for hire agreements. With this deal in place, they get all copyright ownership. Work for hire can exit in tow instances:
- Work made by an independent contractor
For an independent contractor’s work to qualify as work for hire, it needs to meet these conditions:
At the start of the work, the contractor needs to have been paid to come up with something new as opposed to being paid to work on something that already existed.
There needs to be an express agreement between both parties that eh work being created is a work for hire.
It also has to fall into this category of works: translations, contribution to any audiovisual work, contribution to a collective action like a magazine, an atlas, compilation, instructional text, test, answers for a test, or a supplementary to the work by another author.
It is still unclear on the validity of an agreement signed after the work starts. It is better to sign the contract before the work begins. Without this, the creator of the work could decide to launch a legal dispute.
Since working for hire by an independent contractor only falls into these categories, not all work is considered for hire. For instance, writing a novel for someone can never be considered work for hire.
In most cases, work for hire agreement will not be enough. Thus, it would be best to add an agreement on the entire copyright. However, many freelance writer may be opposed to this as they would wish to profit from recycling their creative content.
Additionally, by signing work for hire agreements, the employer could impose obligations on themselves related to worker compensation coverage. Always consult a tax lawyer before signing the work for hire agreement. Otherwise, you may have to deal with employee benefit matters.
Ensure Freelancers Have Permission for any Third Party Content
When working with a freelancer, take extra care to ensure that he or she has permission for any third party material they use. It is essential that they secure rights to use this work. Besides that, you need to ensure that the rights are transferable.
You can include a clause that states final payments will only be made when all permission letters are delivered. To limit your risk, you should also make creators of any commissioned work agree to reimburse you for any damages resulting from the use of third-party works without permission.
- Work Created by Traditional Employees
Any work created by an employee within the scope of their duties is work for hire. The jobs do not need to fall into the nine categories of posts for hire. There is no need for an additional agreement to certify this.
The term employee does not have any precise definition of law. Thus, to avoid any ambiguity, it is always a good idea to add a clause stating that any work created is work for hire. The agreement should also include no disclosure and non-competition agreements to avoid leakage of your trade secrets.
However, if employees create any works after working hours or outside the scope of their employment, it cannot be considered work for hire. Thus, there is always need to negotiate for such work in a separate agreement. Are you working in an industry that relies on creative content? It is still essential to have competent patent lawyers by your side to advise you at all times.