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Understand how the 'work made for hire' doctrine works

Are you a creative individual who works for hire? If you work as any sort of freelancer or independent contractor, you need to understand how works created for others are regarded in terms of the resulting intellectual property rights. Without a solid understanding, you won't be able to negotiate your contracts properly and protect your interests.

The "work made for hire" doctrine

Normally, the creator of a software code, a video, or some other original work automatically holds its copyright. That can change, however, if that original piece of work was created by someone who is working for another individual or a business.

In other words, there are numerous circumstances where the physical author of an original work and its legal author are different. This commonly happens with employees who create original works for their employer as part of their jobs -- the company generally owns the work from the start. With freelancers, however, there are some unique rules that must be followed.

The three-prong test

Copyright law is very specific about what type of original creations fall under the "made for hire" doctrine when freelancers are involved. Three things about the work need to be true:

1. The work must have been created specifically by order or commission.

2. It must fall into one of nine limited categories, including:

  • An atlas

  • Tests

  • The answers for a test

  • Instructions (including textbooks)

  • Translations

  • Compilations

  • Audiovisual works

  • Supplementary works (such as illustrations, forwards to books, etc.)

  • Contributions to a collective body of work

3. You and the business or person who hired you to produce the work must have a written contract, and that contract must address the issue of ownership of any original works. Absent a contract, you retain your copyright.

The effect of a contract

Once you and the other party have a deal, the other party becomes the legal author of your work. When applying for a copyright registration on any of the work involved, the party that paid for the work would be listed as its author -- not you.

Intellectual property disputes are sometimes an unfortunate drawback to freelance work, but you can minimize your problems by paying close attention to how your contracts are formed around the issue.

On behalf of Crockett & Crockett posted on Tuesday, August 7, 2018.

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