October 15, 2014
Copyright ownership in works of authorship is an often-litigated issue in copyright law. In general, this infographic shows you the point-by-point analysis that must be done to properly ascertain copyright ownership by employees and independent contractors. This analysis is required to ensure that a company owns the rights it believes it is obtaining from work by third parties.
Is the person an employee or an independent contractor?
Whether the individual that created a work is an employee or an independent contractor is a factual issue. Common law agency principles are used to determine the employment or independent contractor status of an individual for copyright work-for-hire purposes. The factors shown in the infographic are those the courts consider in determining whether an individual is an employee or an independent contractor. After weighing these principles and establishing the creator’s status as an employee or independent contractor, Buyer should next analyze the steps for properly securing rights to works created by each category discussed in the below sections.
Works created by employees
A company will be deemed to be the author of works created by its employees if such works were created within the scope of their employment. Even if the work performed outside of normal working hours, on the employee’s own time, the work can still be “within the scope of employment” such that ownership vests in the employer.
Works created by independent contractors
As use of part-time personnel and contract coding and creative workers increases, understanding how the copyright ownership rules vest title to the work is increasingly important in corporate management. The infographic illustrates the steps in the legal analysis. Note that in cases of works created by independent contractors, a written, signed agreement is necessary to validly vest title in the contracting party.
As the infographic and the above discussion demonstrate, copyright ownership follows guidelines that must be assessed when determining the title to any given work of authorship. For more information about these analyses please see §§ 8:37-8:40 in Intellectual Property Due Diligence in Corporate Transactions: Investment, Risk-Assessment, Management.