Understanding the Copyright “Works Made for Hire” Rule

Intellectual Property rights (including trademarks, copyrights, patents, trade secrets, and other proprietary or confidential information) are some of the most valuable and hard-earned assets that a company or entrepreneur has.  Protecting those rights is of the utmost importance and can be more complicated than you might expect, as the varying categories of Intellectual Property also have varying rules concerning ownership.

This article will focus on ownership of copyrighted works and the often misunderstood “Works Made for Hire” rule of the U.S. Copyright Act.

A “copyrighted work” is an original work of authorship that is fixed in a tangible medium of expression. Protected works include (among other things) literary, dramatic, musical, artistic, computer software, and architectural works.  In general, this protection allows the owner to stop others from using the work without permission the moment the work is fixed in a tangible form.

Under Section 201 of the Copyright Act, the original author(s) of the work own the above-mentioned copyright protection.  However, Section 201 also contains exceptions to this general rule of ownership when you are dealing with employee-created works or those created by independent contractors or consultants.  This exception is known as the “Works Made for Hire” rule.

Under Section 101 of the Copyright Act, “Works Made for Hire” are defined as either (1) a work prepared by an employee within the scope of his or her employment, or (2) 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 signed written agreement that the work shall be considered a Work Made for Hire.

Therefore, if you are dealing with a work created by an employee (as opposed to an independent contractor) and the work was produced in the course of employment, the copyright belongs to you, not your employee.

However, if the work is created by an independent contractor, you will not own the copyright unless the work falls into at least one of the categories listed above – and you have a signed written agreement with the independent contractor stating it is a Work Made for Hire.

To learn more about copyright ownership and for assistance in drafting agreements to protect your Intellectual Property rights, please contact McCarty Law’s Trademark & Intellectual Property Lawyers.

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Kristy A. Christensen

Commercial Litigation and Dispute Resolution Attorney at McCarty Law LLP
Kristy handles commercial litigation matters of every type, with an emphasis on construction matters and real estate matters. She also specializes in intellectual property and immigration law.