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What an Intelligent Small Business Owner Needs to Know About Copyright Law - Part 3

You may not Own your Logo

Last week we talked about avoiding right-clicking and impermissible copying. Once you hire someone to create artwork for your business, you want to make sure you own the rights to that artwork at the end of the day.

Many business owners assume if they hire a photographer, graphic artist, website developer or ghost writer that they own the rights in the resulting work. You know what happens when you assume! If your employee creates the work for you, your business will own the rights to that work, but that is not necessarily true if you hire an independent contractor.

There is a doctrine in copyright law called “work made for hire” where commissioned works are owned by the party commissioning the work, and not by the artist.

The problem is, hardly anything (and I'm being generous) in the statute applies to the average business work-made-for-hire scenario.

Section 101 of the Copyright Act defines “work made for hire” as:

  • a work prepared by an employee within the scope of his or her employment; or

  • 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.

This is a rather esoteric list, and the upshot is that an independent contractor graphic artist or web designer may end up owning the software, logo or website that was commissioned. Many companies assume, since they paid for the work, they automatically own it. Other companies never even realize there is an issue.

While there may be implied licenses, it is important for companies to address ownership issues up front via contract.

For more information, check out this information from the US. Copyright Office.


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