As a general rule, when an artistic or literary work is created, the author is the one that holds the copyright. Nobody can copy, distribute, or display the work without the author’s permission. When a painting is sold, the buyer owns the painting itself, but does not have the right to use that image for anything else other than to hang it. But what happens if the artist was hired specifically to create that painting for the cover of an upcoming novel? In some cases, the copyright is owned by the buyer, but only under very specific conditions.
Copyright for a freelancer
For the hiring party to own a copyright on a specially ordered or freelance work, there must be:
- a written agreement signed by both parties
- that specifically states that the work is a work made for hire.
- and, the work must be one of these nine categories of creative works:
- a contribution to a collective work,
- part of a motion picture or other audiovisual work,
- a translation,
- a supplementary work,
- a compilation,
- an instructional text,
- a test,
- answer material for a test,
- or an atlas.
While this may seem simple, most people are not aware of these requirements and therefore, the agreement between the parties is often faulty.
As well, notice that visual arts or literary authorship are not specifically mentioned on the category list, and so even with a signed agreement stating the work is a work made for hire, the artist or author may still hold the copyright. For example, if an artist is hired to paint a wall mural for an office building, that is clearly a work of visual art, so despite a work made for hire agreement, the artist retains the copyright. On the other hand, a graphic designer signing a work made for hire agreement to create an original work for the cover of a magazine may not hold the copyright because the work may be considered a “contribution to a collective work.”
The reason I say, “may not hold the copyright,” is that the definition of a collective work is not universally defined. Whether a work falls into one of the nine categories depends on several factors, including how the court in that Federal District has defined the term in the past, or what the industry standard may be when hiring freelancers. Specifically stating the work is a work made for hire may be enough, but to avoid any confusion, it is best to spell out which of the nine categories the work falls under. In this case, the contract may state, “this agreement is considered a work made for hire as a contribution to a collective work. All copyright in the work, therefore, is held by . . . “, or something to that effect.
Without specific requirements made in writing, the hiring party will not own own the work they commissioned?
If the author retains the copyright in a commissioned work, then all that the hiring party receives is a limited license for its use consisting of whatever rights the author assigns. Even without work made for hire language where the copyright is to be maintained by the author, those rights should still be spelled out in a written agreement to avoid confusion. Let’s say a videographer develops a 30-second commercial for Company X, which the company intends to show in their local market, Atlanta. The videographer and Company X sign an agreement but it is not a work made for hire and there is no dispute that the videographer holds the copyright in the commercial. The agreement allows Company X to run the commercial for 3 months before an additional license fee is required. The commercial runs for 2 months in Atlanta, but then, for the remaining month, Company X starts showing the commercial in 10 major cities around the country as part of a national expansion campaign. The videographer was told the commercial would show only in Atlanta. The videographer feels he should receive an additional licensing fee for showing the commercial nationally but would find it difficult to sue without having specified the terms in the agreement.
These are small examples, but lawsuits around copyright ownership of works made for hire are common. Fortunately, problems can be easily avoided by following the rules mentioned here. Just make sure that both parties are aware of the rules so there is no question that both parties fully understood the terms upon signing.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.