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Who gets to claim a Copyright, the author or the employer?

When one of your workers produces a work for your business, naturally you will want the business to own the Copyright over that work. But this is not automatically the case, as we will explain in today’s post.

A person working independently on a work in “fixed” form, such as a story written on paper or a computer program saved on a hard drive, owns the Copyright once the work is completed. But if that work was “made for hire,” the Copyright belongs to the individual’s employer. A work is “made for hire” when it was created in the scope of the creator’s employment.

Determining whether something was made for hire gets a little trickier when the creator is not a direct employee, but is instead an independent contractor, such as a freelance writer. In those cases, the Copyright belongs to the hiring business only if the work in question is one of the following:

  • Part of a larger literary work, like a magazine or anthology.
  • Part of a motion picture, such as a screenplay.
  • A translation.
  • A supplemental work, such as an afterword, index or editorial note.
  • A compilation.
  • An instructional text.
  • A test, or answers to a test.
  • An atlas.

However, when the work is included in a collective work like a magazine or encyclopedia, the authors of each independent work own the Copyright over the section they wrote. The publisher can have a Copyright over the collective work as a whole when it exercised creativity in compiling the individuals’ works, and selecting which ones to include.

Determining who owns a Copyright is often not cut and dried, so the advice of an Intellectual Property attorney can help your business avoid costly mistakes.

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