Wednesday, December 5, 2012

Work for Hire: Employees and Copyright Ownership

Royalty free image - see credit below
Under the US Copyright Act, the creator of the work does not own the copyright when it is created by an employee in the scope of his/her employment, or when it is a commissioned work specially ordered for use in a bigger collective work. 17 U.S.C § 101.

This means that if the creator of a work is an hourly or salaried employee drawing a regular paycheck, and the work is created in the course of  his/her employment, the the work -- an article, a photo, software, music - is a work for hire and the copyright belongs to the employer.

Common examples include staff photographers, newspaper reporters, newsletter editors, software designers,  and music studio engineers.

But what if you are a newspaper reporter (are there any of those left?) working on a novel in your evening hours?  Or a software designer working through the night to create the next great gaming experience?

The answer may depend both on the Copyright statute and any applicable employment contract.

For the reporter writing a novel, the answer is clear.  The reporter is not acting within the course and scope of his employment when writing a novel (although an argument could be made if he/she was employed by certain supermarket tabloids).  The novel is written off the clock and is not something done for the newspaper.

The software designer may be in a different situation, depending on circumstances.  If the designer works during the day on the latest accounting or business productivity software, his evening work on gaming is probably outside the scope of his employment. On the other hand, if the designer works for a gaming system, his work even off the clock could be considered work for hire.  This is particularly true where the  designer has a contract specifying that he owes the company his complete effort, and that all work product belongs to the company.

It is a fact sensitive matter that defies a simple black and white answer for all cases.

But what about a free-lance writer or artist hired for a specific project?  That became the topic of a leading United States Supreme Court decision - and the topic of my next post.

photo credit: <a href="">no3rdw</a> via <a href="">photopin</a> <a href="">cc</a>

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