In general, if you create a work, you are the copyright owner of the work. However, if you create a work for hire, copyright law recognizes the person who hires you as the owner of the work. Your work may be a work for hire if you create it as an employee or as an independent contractor (a freelancer). However, if you are an independent contractor, the law makes it harder for the hiring party to obtain the copyright ownership of your work. While we discuss the work for hire doctrine below, you may wish to also consult Keep Your Copyright's excellent resource on Works for Hire for more information.
Your work falls under the work for hire exception if you create it in a conventional employment setting. For example, if you write blog posts as part of your job responsibilities, your employer owns the copyright to those posts.
However, determining whether an employee creates a work in the
scope of employment is not always so straightforward. For example, if
you write a screenplay during your lunchtime, you own the copyright to
the screenplay. As another example, a university professors, despite
being an employee of the university, owns the copyright to her
textbooks, scholarly articles, and blog posts. (See Columbia
University's copyright policy and Trinity University's copyright policy as examples of how educational institutes are following this practice.)
Your work may also fall under the work for hire exception when you create it as a freelancer, if:
- You and the person hiring you enter into a written agreement stating that the work shall be considered a work made for hire, and
- it falls into one of nine categories of works outlined in the copyright statute. The nine categories of works are those "specially ordered or commissioned" for use as:
The person who hired you as an independent contractor owns the copyright to the work only if these two conditions are met. Otherwise, copyright ownership remains with you. Therefore, as a freelancer, you own the copyright to your work unless you sign a contract explicitly designating it as a work for hire. This gives freelancers a considerable amount of bargaining power in negotiating the terms for a commissioned work.
Issues to Consider
The work for hire area is complex. Whether someone is an employee or independent contractor often turns on specific factual circumstances, and includes a discussion on factors outlined in the business section on Employee Versus Independent Contractor. Additionally, whether a work fits into one of the above nine categories hinges on sometimes difficult distinctions. You should safeguard against any future misunderstandings by being clear about your relationship in writing.
For example, if you're contemplating a situation in which the person hiring you will own the copyright to your work (which falls into one of the nine categories), not only should you add express language about the work being "made for hire", but you should also consider bargaining for additional compensation due to giving up your copyright ownership.
On the flip side, if you are commissioning someone to make a work "made for hire," make sure that the work fits into one of the nine categories listed above. If the work clearly does not fit into one of those categories, consider having the freelancer assign the copyright to the work to you as part of the agreement, or adjust the payment to reflect your lack of copyright ownership.
You may want to consult a lawyer before entering into an relationship where you will be creating works for someone else or hiring someone to create work for you. Refer to the section on finding legal help to explore your choices.