Art work ownership

[HVISAR]

I own a screen printing business and hired a person to screen print for me and also create some artwork for customers to print.  I paid this person hourly.  Who owns the rights to the art work created while working for me.

[Smokin]

Depends on if he would be considered an employee or independent contractor. Anyone can hire someone on an hourly basis, that does not necessarily mean he is an employee.

The more this resembles a "gig", something you did outside the bounds of what your business normally does (worker brings own supplies, tools, and skills), the more that points to an independent contractor and means the artist owns the rights to the work, but there is prob an implied license to use the work on your part even if he does own the work. The more it looks like he was hired and was an employee (filled out a w2, had insurance, long term employee, did work that clearly falls within the scope of what your business deals with, you supplied the tools), the more it points to a "work made for hire" which would mean the company or employer owns the copyright.


http://www.copyright.gov/circs/circ09.pdf

[HVISAR]

Thanks for this.  It was a long term employee, who did have insurance through the business.  If I was to hire a independent contractor next time, should I have a contact made up so that the design can't use the artwork for any thing else or to sell it to others?

[Smokin]

you can have him/her agree in writing before they start the project that it will be a "work for hire" situation. Best get legal advice on what that contract/agreement should look like. That would mean you would still own both the work and copyrights since they are effectively giving them  up to you.

[JSonnabend]

you can have him/her agree in writing before they start the project that it will be a "work for hire" situation. Best get legal advice on what that contract/agreement should look like. That would mean you would still own both the work and copyrights since they are effectively giving them  up to you.

If you have him/her agree in writing before they start, it may be a work for hire.  It still has to fall within one of the statutory pigeonholes to qualify.  Your contract should have a very broad license fallback provision.

- Jeff

[DogDayPM 9er9er9er]

... it may be a work for hire.  It still has to fall within one of the statutory pigeonholes to qualify.  Your contract should have a very broad license fallback provision.

- Jeff

Or what about obtaining agreement to directly assign?  I use something like "shall be considered works made for hire under US copyright law ....  [but to the extent not] then Company A agrees to assign and hereby does assign to Company B any ownership interests Company A may have to the copyright in such materials."

[JSonnabend]

What do you mean by "ownership interest"? 

- Jeff

[DogDayPM 9er9er9er]

What do you mean by "ownership interest"? 

- Jeff

What I get for guessing at the actual language (can't recall what it actually says).  My short answer is, "whatever I need it to mean when/if I ever need to enforce the clause" (haven't had to but generally only working with fairly large/established vendors).  Longer answer is elsewhere in the K the vendor reps/warrants that all employees working on the project have existing contractual obligations to assign to the vendor any rights in any IP (laundry list) they may generate while working on the project, in the hope that no individual employees of the vendor can claim to own or co-own their creations relating to the project (please don't come back and ask what I mean by "relating"  ).  So back to copyright WMFH question, if the works are square pegs (not fitting the statutory round holes), then they're owned by the vendor who agrees to assign to me.