Generally your work is protected by copyright from the time it is created in a fixed form and becomes the property of the author who created the work. A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed. More than likely your works are already protected by copyright laws.
What if you are creating art as a paid assignment, commission or as a part of a collective work? Who owns the copyright to your creation or contribution?
What if you employ or contract with others to create or assist in the creation of a work? Who owns the copyright, you or your employer/contractor?
If you find yourself in either of these positions then it is important that you understand a part of the copyright law called “Work for Hire”.
Work for Hire
Work for hire is a special case of copyright where an individual (or group of individuals) assign their rights of copyright to another. This may be by terms of employment or a contractual agreement. The U.S. Copyright Office explains work for hire as:
“Under the 1976 Copyright Act as amended (title 17 of the United States Code), a work is protected by copyright from the time it is created in a fixed form. In other words, when a work is written down or otherwise set into tangible form, the copyright immediately becomes the property of the author who created the work. Only the author or those deriving their rights from the author can rightfully claim copyright. Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: the copyright law defines a category of works called “works made for hire.” If a work is “made for hire,” the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.”
The U.S. Copyright office further defines “work for hire” as:
- “a work prepared by an employee within the scope of his or her employment or”
- “a work 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and intended to be used in systematic instructional activities.”
Determining whether a work for hire relationship exists depends on the relationship between the parties. As a creative professional you may find yourself doing work for others or you may employ or contract with others to create your art. Two main distinctions are work created as an employee and work created as a contractor.
Work created as an employee
According the U.S. Copyright Office:
“‘Employer–Employee Relationship Under Agency Law
If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an “employer-employee” relationship as defined by agency law:
- Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
- Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
- Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)”
Work created as a contractor
According to the U.S. Copyright Office:
“If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
The nine categories listed in the definition are: “a work 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”
The Bottom Line(s)…
- If you are an employee make sure you know what is contained in your employer’s policy manual and don’t take anything for granted.
- If you are an employer you should clearly spell out your policies with regards to “work for hire” and make sure your employees understand these policies
- If you are a contractor, be sure to thoroughly read and understand any contract before you sign it. If you choose to pursue a “work for hire” arrangement you may decide to place a premium price on the work you produce. Think carefully how a “work for hire” arrangement will affect you now and in the future with regard to future projects, portfolios and your brand.
If you would like to learn more about building your art business and selling more art I invite you to check out my book – The Artist’s Business and Marketing ToolBox. Good Luck!
Neil McKenzie is the author of The Artist’s Business and Marketing ToolBox – How to Start, Run and Market a Successful Arts or Creative Business available in softcover from Barnes & Noble and Amazon and as an eBook from iTunes, Amazon and Barnes & Noble. He has developed and teaches the course “Artrepreneurship” at the Center for Innovation at Metropolitan State University of Denver, and is also a visiting professor at University College at the University of Denver where he teaches “Marketing the Arts”.
Neil has over 30 years’ experience as a management consultant and marketing executive, working with some of the world’s top brands. Neil is a frequent lecturer to artists and arts organizations, a guest columnist for Colorado Biz Magazine, where he covers the creative sector of the economy, and the author of several articles for Americans for the Arts, a national arts organization. Follow Neil on Twitter: @neilmckenzphoto
When you are dealing with the law and contractual agreements it is imperative that you know what you are getting into; don’t assume anything! Make yourself as knowledgeable as possible and seek the advice of a competent professional.
“This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold and distributed with the understanding that the publisher and author are not engaged in rendering legal, accounting, or other professional services. If legal or other expert assistance is required, the services of a competent professional person should be sought”
For more information on copyrights visit the U.S. Copyright Office at www.copyright.gov.