When You Don't Own Your Own Writing: Work for Hire and Copyright

Royalty free image: poto credit below

For the author pounding out a novel, biography, or short story in his basement, hoping to eventually find an agent or a publisher, ownership of the copyright is not an issue.  The author controls the rights until he/she signs a contract transferring those rights to a publisher.

But what happens if the writer or photographer is employed by someone?  Who owns the copyright?

In most cases, the answer is simple. If a work is created by an employee, that person's employer owns the copyright. This is called "work for hire."

Here's the statutory definition from the U.S. Copyright Act, 17 U.S.C § 101:

"(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 written instrument signed by them that the work shall be considered a work made for hire."

If the creative work is a "work for hire,"  the person who actually wrote the article, took the photograph, or drew the artwork, does not own or have any intellectual property interest in the product which he or she created. Rather, those rights reside with the employer who is paying the employee a salary for his work, including his work product.

Most common examples:

• Newspaper reporter does not own the copyright in his articles.
• Newspaper photographer does not own the right to photos he takes.
• Artists employed by advertising agency does not own copyright in his or her drawings.
• Software designer working for gaming company does not own property interest in the new game he or she designs
• A web designer employed by Internet company does not have copyright in his website designs.  

In each of the above situations, the copyright interest belongs solely and exclusively to the employer. This means that the employee has no right  license, sell his/her own creative product. The employee has not right to control its use, and in fact has no right to use his/her own creative works without the permission of the copyright holder.

An example: certain writers have recently gotten in trouble for self-plagiarism. But ethics aside, plagiarism itself does not violate the law.  What does violate the law is copying your own prior writing when someone else - like a former employer - owns the copyright.

But who is an "employee"?  That's the topic for the next post.


photo credit: <a href="http://www.flickr.com/photos/denverjeffrey/1950409800/">Jeffrey Beall</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nd/2.0/">cc</a>