From the National Law Review — Brandon K. Johnson writes about the challenges around intellectual property rights that exist when independent contractors create copyrighted materials. He writes:
“Independent contractors can create copyrighted works on behalf of another, and unless there isn’t a definitive agreement that the work is a work made for hire, the contractor may retain some ownership rights in the work. The work will be considered a work for hire and owned by the client of the contractor if it is “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.” (17 U.S.C. § 101) This language proves limiting for what can be considered a work made for hire in an independent contractor-client relationship. For example, a grocery store commissions a talented artist to paint a mural for the store. In the agreement for the commission, it states that this work is a “work made for hire” and the grocery store client expects ownership. However, the mural arguably doesn’t fall into one of the nine codified categories necessary, so the work is likely NOT a work made for hire and the artist still retains copyright interests – mutual agreement alone is insufficient to make the work a work made for hire. Nevertheless, it is important as a contractor to read any agreements with clients carefully to determine ownership of any property.
One last point to consider is that the line between employee and independent contractor is not an indelible one. The Supreme Court set out certain factors in the case Community for Creative Non-Violence v. Reid that provide guidance as to the difference between the two, such as how much control the employer has over the work, over the employee, and what status the two parties have vis-à-vis each other. This is a crucial distinction – as noted above, employees will always create a work for hire when it is in the scope of their employment, while independent contractors have far more limited circumstances where this is true….”
Read the full story at Who Owns What When a Copyrighted Work is Created in the Workplace