The owner of the copyright controls the right to reproduce the work.  This is not a problem where the author is also the owner.  However, when the actual work is done by a third person - an employee or an independent contractor - problems can arise if the relationship between the owner and the creator of the work - or some portion of the work (think about (illustrations, for example) is unclear.

The Copyright Law has provisions for "works made for hire" but does not cover all situations.  The law on "works for hire" is as follows:

101 - Definitions - of the Copyright Act

A "work made for hire" is-

(1) a work prepared by an employee within the scope of his or her employment; or

(2) 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.

For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary , pictorial , or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

The problem with the above language is that an argument can be made that if a work is not specifically identified in the above definition, it may not be a "work made for hire".  If so, the employee or third-party contractor may be the author and control the copyright.  To cover those situations, you need an agreement that not only states that a work is a work made for hire, but that the creator of the work assigns all rights in the work to the intended owner.  If in doubt, consult an attorney who knows this area.  It will be worth the time and money to make sure that there are no future arguments and litigation over who controls the work.  If the work becomes valuable, some other lawyer will make clever arguments that his or her client is the true owner of the copyright.  You may win eventually, but your win will cost you.  "Drive-by-lawsuits" are even more common than "drive-by-shootings."

Law Offices of Douglas Clark Hollmann

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