Friday, December 7, 2012

Free Lance Writers and Copyright Ownership: Is It Work for Hire?

So if you're a regular employee, and you create a something, it is a work for hire and  the copyright belongs to your employer. But what if you are a free-lance writer, web designer or artist, who is hired for a specific project? 

Royalty free image - see photo credit below
For these situations, the ownership of copyright often is  covered by the terms of the contract between the parties  That "small print" really does mean something.  But that's a subject for a later post.

What if there is no contract?

The leading case addressing ownership of copyright in these circumstances is the United States Supreme Court decision in Community for Non-Violence v. Reid (1989).  That case involved a sculpture commissioned by the plaintiff, a community organization devoted to assisting the homeless (hereinafter "Community").  Community contracted with Reid to prepare a sculpture, specifying various details including that it was to be a nativity scene using homeless people as the figures, providing the language to be used in the sculpture, and even providing persons as models for the figures.

As is so often the case in these type of disputes, the parties did not sign a written contract and did not discuss ownership of the copyright. Community claimed that it had specified the details of the work, and therefore the scupture was a "work for hire" under the Copyright Act and that Community owned the copyright.  Reid asserted that he was not an employee, but rather an independent contractor, and that he maintained ownership of the copyright.

Writing for a unanimous Supreme Court, Justice Thurgood Marshall held that the artist was an independent contractor, and therefore the sculpture was not a work for hire.

In reaching the decision, the Court pointed out that the Copyright Act does not define the term employer.  Consequently, the Court turned to common law, and held that the determination of who was an employee would turn on general common law concepts of agency.  The court specifically noted that individual state laws of agency would not apply as this was an issue of federal law. Nor is this determination governed by the test used by the IRS to determine whether a person is an employee or an independent contract.

The short version of the ruling is that even if the person commissioning an independent contract provides all of the details, the copyright remains with the person creating the work, unless there is a contract to the contrary.

So what are these concepts of agency that determine whether your work is your own or one for hire?   That's a topic for the next post.

photo credit: <a href="">mindgutter</a> via <a href="">photopin</a> <a href="">cc</a>

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