Many businesses use freelancers to write blogs, handle social media, write software, and provide other types of intellectual property (IP). But too many businesses are careless about securing the rights to the IP they’ve paid for.
Understanding Copyright
Copyright, as the US Copyright Office explains, is a form of legal protection that covers “original works of authorship fixed in a tangible medium of expression.”
Copyright protects “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.”
Copyright doesn’t protect facts, ideas, systems, methods of operation, or inventions. Creations that qualify as inventions may be protectable under patent law, which is a separate branch of IP law.
A work doesn’t need to be registered with the US Copyright Office to be considered “copyrighted.” Copyright exists from the moment the work is “fixed” in a tangible means of expression — such as being written on paper, recorded on audio tape, or saved on a computer’s hard drive or in the cloud.
Although a work doesn’t need to be registered to be considered copyrighted, the copyright owner does need to register it before suing someone else for infringing the copyright.
Registration also confers other benefits, such as proof of when a work was created and by whom. Registration lets the copyright owner recover statutory damages and attorneys’ fees if their copyright infringement lawsuit is successful.
Because of copyright treaties, a US copyright can be enforced in many other countries.
Authorship
The author of a work normally owns the copyright for that work unless and until the author assigns the right to someone else.
However, under the “work made for hire” doctrine, the person who physically created the work isn’t considered the author – their employer or client is.
Work Made for Hire
A work made for hire is defined in 17 U.S. Code § 101 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.
The second clause above covers work by freelancers. This is a much narrower definition than many people realize. A work doesn’t automatically become a “work made for hire” simply because someone is hired to create it.
Copyright Assignments
Thus, to make sure that a business actually owns the copyright in the work that freelancers created, there should be a written and signed agreement between the business and the freelancer in which the freelancer assigns his or her authorship rights to the business.
A simple form of such a clause might look something like this:
Any Deliverables that Service Provider creates for Client, and any copyright or any other intellectual property (“IP”) rights associated with the Deliverables, shall belong to Client. Upon Client’s request, Service Provider shall sign any additional documents needed to grant title to the Deliverables (and to the associated IP) to Client.
If a business is working with a freelance agency, then it needs to make sure that the employees or contractors working for that agency are conveying the necessary IP rights. For example, an agreement with an agency might include language like the following:
Before providing Services, all Service Provider Personnel shall be subject to binding written agreements with Service Provider under which they assign and effectively vest in Service Provider any and all rights they might have in the results of their work without any obligation of Client to pay any royalties or other consideration to such Service Provider Personnel.
Failure to obtain the proper documentation of copyright ownership can cause a business expensive legal headache. It can also impair the business’s ability to be sold or attract investment, as the lack of these rights can be exposed during the due diligence process.
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