A copyright is the legal protection automatically granted to the creations of authors, musicians, writers, artists and other intellectual works. A copyright is awarded for the life of the creator plus 70 years for works created after 1978. Motion pictures, photographs, songs, poems, videos, books, catalogs, software and sales literature are examples of works that can be copyrighted.
In order to obtain a copyright registration, which grants the author certain additional legal rights and presumptions, MBV needs to prepare a copyright application and file the application with the Copyright Office. If the provisions of copyright law have been complied with, then a certificate of registration is issued to the copyright owner. Registration may be necessary in order to bring a copyright infringement suit against another party and/or to be eligible for statutory damage claims in the suit.
Who Owns the Copyright when One Party is Paid to Create the Work for Another?
(“Works Made for Hire”)
An important consideration in copyrights is who owns the copyright when one entity carries out the design/creation for another and the parties have not expressly assigned ownership in a contract beforehand. When a company hires an outside contractor to create a work (e.g., a computer program, art work, brochure, etc.) for the company, the contractor may own the rights to the work even though the company is paying the contractor expressly to make the work for the company’s use. While all of the possible factors that could come into play in the determination are too numerous to discuss here, the following is a very simple illustration of the statutory “Work for Hire” definition to determine if something is a) “work made for hire” and owned by the employer or b) a work made by an independent agent and thus owned by the agent. For more information, see the Copyright Guide to Works Made for Hire.
A work in general is initially owned by the creator of the work, except when it is a “Work Made for Hire,” defined under 17 U.S.C. § 101 as:
- A work prepared by an employee** within the scope of his or her employment; or
- The parties expressly agree in a written instrument that the work shall be considered a work made for hire, and
the work is 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.
**Note**Noteemployeebroader than the “common understanding” of the termTests to determine whether an individual is include, but are not limited to, looking at whether the employee creates the work at the employer’s location using the employer’s resources, whether the employer controls the employee’s schedule, and whether the employer provides benefits to the employee and withholds taxes.
Examples of Works Made for Hire:
- A software program created within the scope of his or her duties by a staff programmer for Creative Computer Corporation;
- A newspaper article written by a staff journalist for publication in the newspaper that employs him;
- A musical arrangement written for XYZ Music Company by a salaried arranger on its staff; and
- A sound recording created by the salaried staff engineers of ABC Record Company.
Contact us to find out how to avoid ambiguities in ownership before you contract with an outside agent to create a work for you.