Freelance & Copyright Ownership: Who Owns the Work?

Let’s Talk About Work for Hire Agreements

By: Attorney Elena Fewell Howard
Edited By: Heather Harteis

Understanding Authorship vs Ownership in Copyrights

Generally, an author who creates a work is the owner of that work. A work is an original work of authorship such as a novel, a play, forms of art, software programming, movies and so on and so forth. An author is a creator of the work, for example, a book author, a scriptwriter, a composer, a choreographer, or a programmer. A work-for-hire is when a third party owns a work, not the creator. 

Imagine a person has written a book and wants to hire an illustrator for the book. For the writer to retain ownership over the written text and the illustrations, the best option is to enter into a written agreement with the illustrator that states that the illustrator agrees that the work is a work-made-for-hire. This agreement would result in the writer being recognized as the owner of both the written text and the illustrations provided by the illustrator. Or another example of coming to a work for hire arrangement is where a company that develops and retails software hires multiple programmers to develop an application or operating system. The work for hire agreement would establish that the company is the owner of the programming and therefore owns the copyright.

What are the copyright laws around work-for-hire? 

Timing is essential to a work-made-for-hire agreement. The laws of copyright provide that the third party owns the creation where the third party creates the work within the scope of their employment (employed for wages or salary aka w-2 position) or a written instrument (an instrument is a document or other writing) expressing that the creator agrees that the work is a work made for hire. The work-for-hire agreement must be signed before the creator starts creating the work. 

If you are reading this and you determine that it is too late to enter into a work for hire agreement because the work has already started, you may still have a chance to get something in writing to claim ownership other than a work for hire agreement. You might want to see what alternatives are available to you and what the original creator will agree to, such as a license agreement or full-on assignment of rights. 

Are you a freelancer who isn’t sure who owns the work according to your contract? Would you like a lawyer’s opinion, for a review, revision, or to write a great contract for you?

Rational Unicorn can help you determine your options to protect your intellectual property and walk you through those options. Get in touch via our contact page to discuss this topic with an attorney.