A copyright is generally owned by the creator of a work. If you write it, you own it. However, there is an exception to the rule. Under the “work for hire” doctrine, any work prepared by an employee within the scope of his or her employment belongs to the employer who commissioned it. For example, if an employee creates marketing or training materials for his employer, the employer owns the materials.

Problems often arise when attempting to prove that a creator is an employee rather than an independent contractor. Generally, a court will rule that an employer-employee relationship exists if an employer has control over both the work and its creator, and if the working relationship is one of regular, salaried employment.

With regard to work done by an independent contractor, three conditions set forth in the Copyright Act, 17 U.S.C. Sec. 101, must be met to qualify a work as “for hire”:

• The work must be specially ordered or commissioned (it must be new and not already existing);
• Before work begins, both parties must sign a written agreement that the work is to be considered a “work for hire”; and

(3) The work must qualify as at least one of the following:

• A translation
• A contribution to a motion picture or other audiovisual work
• A contribution to a collective work (e.g. magazines or books)
• An atlas
• A compilation
• An instructional text
• A test or answer material for a test
• A supplementary work (i.e., a foreword, afterword, chart, illustration, editorial note, bibliography, appendix and index).

There are exceptions to the rule, however. Employers do not own works created by employees on their own time, outside of the scope of their employment. Also, the work for hire rule does not apply to patent law; under the “hired to invent” doctrine, employers are entitled to receive assignments of patents when employees are hired for the express purpose of invention.

Despite the “work for hire” and “hired to invent” doctrines, however, there is no guarantee that a court will rule in your favor. A written, signed agreement that clearly states that all work is to be considered “work for hire” is the best way to protect your interests.

If you need help creating an agreement, we would be happy to tell. Email us at mchattielaw.com