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3.1) Who owns the copyright to something I wrote at work, me or my company?




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This article is from the Copyright Law FAQ, by Terry Carroll with numerous contributions by others.

3.1) Who owns the copyright to something I wrote at work, me or my company?

That depends on a lot of things. Normally, you are the author of the
work and own the copyright. There are two broad mechanisms by which your
company may own the copyright, though: assignment and the work-made-for-
hire doctrine.

ASSIGNMENT: Even if you are the author, and therefore the copyright is
initially yours, it may now belong to your company if you assigned the
copyright to them. A full assignment of copyright must be in writing,
and signed; it can't be implied. 17 U.S.C. 204. Therefore, if you're
the author in a copyright sense, and did not assign the copyright to your
company in writing, you still own it. Please note, however, that some
companies make it a practice to acquire a blanket assignment of copyright
in any works created on the job at time of hiring.

Note, though, that even in the absence of a written contract, your
actions might have been sufficient to grant the company an implied
license to the work. For example, in the case of Effects Associates v.
Cohen, 908 F.2d 555 (9th Cir., 1990), a film producer (Cohen) claimed
that he owned copyright in special effects film footage depicting "great
gobs of alien yogurt oozing out of a defunct factory." The footage was
produced by Effects Associates, a special effects company, and there was
no written assignment of copyright. The court ruled that Effects
retained ownership of the copyright, but that Cohen had an implied
license to use it in his horror film, "The Stuff," because Effects had
"created the work at [Cohen's] request and handed it over, intending that
[Cohen] copy and distribute it." Because the license was non-exclusive,
it wasn't a complete transfer of copyright, and did not need to be in
writing. Effects was free to sell the same footage to other moviemakers.

WORK MADE FOR HIRE: If a work qualifies as a work made for hire, the
company is the author for purposes of copyright, and copyright initially
vests in the company. A work is a work made for hire under either of two
circumstances. First, if it is a work prepared by an employee within the
scope of employment. Second, if the work was specially commissioned, is
one of a short list of relatively esoteric types (a contribution to a
collective work, a part of a motion picture or other audiovisual work, a
translation, a supplementary work, as a compilation, as an instructional
text, a test, answer material for a test, or an atlas), and the parties
agreed in writing that it was to be considered a work for hire. 17
U.S.C. 101.

To determine if a work is one prepared by an employee within the scope of
employment, there are two important considerations.

First, was the work prepared by an employee, or by an independent
contractor? Several facts, such as whether taxes were withheld, who
supervised the work, artistic control, setting of working hours, etc.,
will be examined to determine this factor. A good case discussing these
factors is CCNV v. Reid, 490 U.S. 730 (1989).

The second consideration is whether the work was within the scope of the
employment.

Unless these two considerations are met, the work will not be considered
one made for hire under the employee test, and the "employee" will retain
copyright. Of course, the same considerations discussed above regarding
an implied license might exist, even in cases where the work-made-for-
hire doctrine does not apply.

 

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