Works Made for Hire
There is an important exception to the principle that you own all the copyright rights in a work you create. If you are an employee, and what you create is done as a part of your employment, then your employer, not you, owns all the rights. That is a consequence of the “works made for hire” doctrine in copyright law. (For a definition, see the statute.) But it is also important not to exaggerate this point, and to understand that anything that you do independently of your job remains yours.
For example, if you draft a company newsletter as part of your job, your company, not you, owns the rights in what you write for the newsletter. On the other hand, if you’ve written a novel or a computer application in your spare time, and that isn’t your job, you, not your employer, own those rights. That’s important to remember for the many creators who also have day jobs.
Even when you create works as part of your job, it may be possible for you to negotiate to obtain some rights back from your employer.
Other Work-for-Hire Issues
Unfortunately, its not just employees who need to look out for the work-for-hire doctrine. Some freelance creators, particularly journalists, photographers and screenwriters, may also be affected. Some (but NOT all) commissioned works will be works made for hire under the following circumstances:
The commissioned work falls into one of the nine categories listed in the copyright statute. Of these, two of the most significant are contributions to a collective work (such as a magazine, newspaper, anthology, or encyclopedia) and works ordered as part of an audiovisual work (such as a contribution to a motion picture or videogame).
If the commissioned work does not fall into one of these categories, it is NOT a work for hire, no matter what your contract says, and you still start out with all the rights. (Unfortunately, some contracts contain clauses broadly asserting that the work is for hire, even when there is little or no basis for that characterization.)
Even if the commissioned work does come within one of the categories, it is not a work for hire unless:
There is a written agreement explicitly saying the commissioned work is for hire, and
Both the creator and the person ordering or commissioning the work sign the agreement.
If there is no signed written agreement, then the work isn’t for hire, and you start out with all the rights. If there is a written agreement, it should be entered into before you create the work. Beware of after-the-fact attempts to take away your rights by calling the work “for hire,” for example by sending you a check whose endorsement line says that your signature is your agreement that the work was for hire.
Next: Joint Works (Co-Authorship Situations)