But I created it. Why don't I own it?

I find myself answering this question often for clients and other people on message boards that I post on. Most people have gotten the concept that if they create an original work, they automatically own the copyright in that work. And if you own the copyright, you should be able to do whatever you like with the work. The rule should still apply even if you made the work for someone else. Right?

Not necessarily. There are instances when you might create a work, but you aren't actually the copyright holder of the work. The most common of these situations is one where the work is made as a "work for hire".

But what is a "work for hire"? How do you know if you'd made one?

Work for hire is defined in the Copyright Act of 1976 (17 U.S.C. 101). Under the definition, the first thing that has to be examined is the relationship of the parties.

Are you an employee of the company that you're creating the work for? If so, your work is automatically a work for hire and the owner of the copyright of anything that you create is your employer, not you.

What gets a little bit trickier is if you're an independent contractor. The issue hinges on whether you're really an independent contractor under agency law or if you're just an employee in an independent contractor's clothing. Factors to determine whether an employee/employer relationship exists was set forth by the Supreme Court in CCNV v. Reid (490 U.S. 730 (1989)). The Supreme Court set out the following factors that characterize an employer/employee relationship as defined by agency law:

1. How much control does the employer exhibit over how the work is done? (Examples of this include: Is the work done at the employer's location? Does the employer provide the equipment and/or supplies to complete the job?)

2. How much control does the employer exhibit over the employee? (Examples of this include: Does the employer control the employee's schedule? Does the employer determine how and when the employee will be paid? Does the employer have the right to have the employee perform other assignments for the employer?)

3. What type of business is the employer in? Does the employer produce the kinds of work that you are providing the business with? (e.g., Are you creating web pages for a web design company or are you producing a web site for a business that sells dolls?) Does the employer provide you with benefits or withold taxes from your paycheck?

Although the factors are not the only factors considered, the easiest way to think about it is how closely your relationship matches one of an hourly or salaried employee of the business. The closer it is, the more likely that you'll be found to have an employer/employee relationship and the more likely that the work you're doing is a work for hire.

But let's assume that you're really an independent contractor. What then?

Well, at that point there are two conditions that must be met to have your work considered a "work for hire".

1. The work must be "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." 17 U.S.C. 101. AND

2. The paries must expressly agree in a written agreement "signed by them" that the work being created is a work for hire.

If you're missing either prong of the test, your work is not a work for hire and you are the copyright holder of the work that you have created.

What does that mean in a practical sense? Well, it means that you have the right to do whatever you like with the work. However, in the spirit of maintaining goodwill and good business relationships, I would suggest that if you're planning to use work that you created for someone else, particularly to promote yourself, that you let them know that, although you don't need their permission, you'd like their blessing (for lack of a better term) to use it to promote yourself.

You might ask, "Why would you bother doing that if you own the work?" Well, the answer's very simple. If you're using something that you've created with a client's name on it, potential clients might very well contact that former client for a recommendation of whether or not to hire you.

How do you think your former client would react if they found out that you were using something that they thought they owned to promote yourself? Unless you're very lucky, probably not favorably. You want them giving you glowing references, not angry ones. And truly, the entire point of using materials to promote yourself is to get more business.

Until next time....

P.S. If you have topics and/or questions that you'd like to see me cover here on the Blog of Burgess, drop me a line at burgess AT ebusinesslawgroup.com and let me know.