Just about any type of creative expression (including software, photography, artwork, books, movies, and many other types of works) can be protected by copyright law. But, a question that is often overlooked is “who owns copyright to that work?” The answer may be different than many might think…
Originally, ownership of copyright to a work vests in that work’s author; and, in most cases, the work’s author is the person who created it, unless the work is considered a “work made for hire.”
Works made for hire:
A work is a work made for hire (“WMFH”) under two circumstances.
First, if two parties expressly agree in a written instrument for a work’s use in one of nine categories (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). Notice what is not there: most books, photography, software, and many other things. In those cases, the person who creates the work is the author and the original owner of the work.
Second, a work can be a WMFH if it is created by an employee within the scope of his/her employment. In this case, it is really important whether the person is a true “employee” or is instead an “independent contractor.” Courts will look at a number of different factors, including whether taxes were withheld from the creator’s paycheck, whether they receive benefits, and whether creating the work is part of their duties as an employee. If the creator is an independent contractor, the creator is also the original owner of the work.
These rules have some very practical implications. For one, this means that, even if someone is “hired” to create a work, that work is not necessarily a “work made for hire.” So, without a contract stating otherwise, photographers will generally own copyright to all of their photographs. Also, the same goes for businesses that hire companies to develop software or for companies who hire independent contractors to develop software. Additionally, the problem is doubled when a business hires a company who hires independent contractors!
However, even where a work is not a work made for hire, it is still possible to transfer (or assign) ownership of a work.
In future posts, I will discuss:
- How to fix copyright ownership problems?
- What happens to copyrighted works in a community property regime?
- What happens if there are two authors of a copyrighted work?
- What is a copyright license?
- What is open source software?