Work for Hire Agreements: What They Are and When To Use Them

We know that the author of a work automatically owns the copyright to that work by virtue of having fixed the work in a tangible medium.  But what about the company who hires someone to create their website?  And what if that person is an independent contractor, and not an employee of the company? How can a company ensure that it owns the rights to the website it hired somebody from outside the company to create?

Enter the Work for Hire form.  The statute of the copyright law, as far as Work for Hire agreements go, is split into two parts.  The first part says that a work created by an employee within the scope of his or her employment is owned by the employer, not the employee.  Case in point: It’s Business Time, authored by me under the employment of Click Industries, is owned by Click Industries by virtue of my weekly paycheck.  I’m going to run into legal trouble if I start a personal side business selling t-shirts with printed excerpts from the blog (not to mention the financial trouble I’ll run into when I find that no one’s buying).

The second part of the statute, which deals with independent contractors, gets a little trickier.  The copyright law statute says that that the work needs to be “specially ordered or commissioned” and that there must be a written agreement (the Work for Hire agreement) signed by both parties.  The tricky part here is that this doesn’t cover existing works, or a work that has already been started – but it doesn’t explicitly not cover these types of works either.  The law can be hazy, and much of the outcome is determined by the courts on a case-by-case basis, but as an employer or someone who hires an independent contractor, protect yourself with a Work for Hire agreement right away.

This, along with other great tips on the scope of the Work for Hire agreement and using it correctly, has been addressed in a great article by attorney Lloyd J. Jassin, author of copylaw.com.

November 20th, 2009 | Sarah | Tags: , , | 2 Comments »

Copyrights vs. Creative Commons

Many people have the understanding that a Copyright gives you rights to your work, but a Creative Commons license gives others the rights to your work.  This is generally true, but there’s a little more to it than that.

As the Creative Commons FAQ describes, “Creative Commons licenses give you the ability to dictate how others may exercise your copyright rights.”  Creative Commons licenses are not intended to take the place of a copyright; they are intended to work alongside one.  Licenses range from allowing modification and commercial distribution of your work to restricting others’ usage to duplicating your work exactly with no monetary gain, but the common thread is that you maintain the credit for the work.

You may be familiar with Nine Inch Nails’ decision to release their sixth album, Ghosts I-IV, under a Creative Commons license.  In general, what this means is that you or I are able to do things such as create a video with a track from the album, with no explicit written permission from the artist, and throw it up on YouTube for all to see — as long as appropriate credit is given.

The main thing to keep in mind is that Creative Commons licenses work with copyrights.  Anything that can be copyrighted — books, movies, photographs, etc. — can carry a creative commons license.  Anything that isn’t copyrightable — ideas, methods, etc. — cannot.

The logical question, then, is: if I obtain a Creative Commons license on my work that restricts the public from using my work for commercial usage, will I still be allowed to sell the rights to that work to someone else?  The answer is yes.  Creative Commons licenses are non-exclusive, and again, they work alongside your existing copyright.  You hold the rights to your work, so you are able to dictate who can use them.  However, Creative Commons license are permanent.  If someone finds your work under a Creative Commons license that allows them distribution rights, even if you remove the license from your work five minutes later, they can distribute that work, for free, for perpetuity, as long as they continue to credit you.

Think through your altruism carefully — you may be signing away to strangers something that could potentially earn you money.  If you’d rather be in charge of who has rights to your work, get a copyright.

November 13th, 2009 | Sarah | Tags: , , | 3 Comments »

Copyrighting – To Register or Not To Register?

Technically, by the very act of creating a work, you’ve created copyright protection for yourself.  Of course, if anyone gets ahold of your work and files a copyright with the US Copyright Office themselves, going into a court and explaining to the judge that you created it first, with nothing to back up that claim, isn’t likely to get you very far.  You may have heard of the “poor man’s copyright” (mailing a copy of your work to yourself, keeping the envelope sealed upon arrival), but any attorney worth his or her salt will rip that claim apart — there’s absolutely no legal language to support that your stamped and sealed envelope is evidence of anything other than the ability of the Postal Service to deliver a package.  The only way you can be awarded damages for someone infringing on your copyright is to register your work with the US Copyright Office.  Period.

With this in mind, unless you plan on keeping your work locked away in an attic for all eternity, it’s a good idea to register the work with the US Copyright Office.  It’s cheap, it’s easy, and you can rest easy knowing that you have inarguable ownership of what you’ve worked so hard to create.

As a side note, even if you can’t see yourself ever suing anyone for infringement, there are other great reasons to register your copyright.  Imagine this scenario: a screenwriter comes across your book, loves it, and decides she’d love to base her next screenplay on it.  She’s a socially conscious individual who wants to make sure you get your fair share, but without a copyright registration, how is she going to know where to mail the check?  If you’re registered, it’s simple.  She searches the US Copyright Office records by title, locates the work, and sees the owner — your contact information is just a click away.

Stay tuned — in a few days we’ll go over what you can and can’t copyright, the information you’ll need to do so, and what this means for your business.

November 3rd, 2009 | Sarah | Tags: , | 3 Comments »