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Who Owns That Intellectual Property? Depends On Whether It’s Work For Hire


It’s the company holiday party, or summer party, or a charity event. You ask someone to take some pictures of the event, to put it on your website, or on social media. That’s a great idea from a marketing standpoint. But have you thought about the copyright problems that may be involved with that?

It may sound silly, but remember that every time someone takes a picture, the picture becomes their intellectual property. You cannot just take, without permission, someone else’s photo and put it on your marketing materials without potentially running afoul of copyright laws, or else getting sued for the money you made off of someone else’s intellectual property.

Art and Design at Work 

The same is true of artistic ideas that are created in the workplace. Employers ask employees all the time to brainstorm and come up with a cool slogan for an event, or to write text describing a product that will be sold online, or to design an interesting logo for the company website.

The employees follow directions, but who actually owns, and who can use, the work that was just created? The employee, as the creator of the artistic or creative work, maintains ownership in that intellectual property…unless the logo or design was made as what is known as a “work for hire.”

Many employment agreements contain work for hire provisions, specifically stating that anything the employee creates during the course and score of his or her duties, is not the property of the employee, but the property of the employer. However, employees’ works are generally considered to be work for hire, even in the absence of a written agreement, so long as the work is created in the course and scope of employment.

Independent Contractors

One problem for employers arises with independent contractors. With contractors, employers are best served making sure there is a written agreement saying that the creative works are works for hire, as their work is not assumed to be work for hire.

Note that an employer cannot claim as work for hire any artwork the employee may create outside of his or her work duties, or which are not in the course and scope of employment.

Employees Need to Be Aware of Work for Hire 

Work for hire certainly protects employers, and gives them the ability to use someone else’s creative works at will. But employees or contractors also have to be aware that if they are in any job—not just creative type jobs—that if they create slogans, pictures, artwork, or photography—they do not own what they created, the company does.

The good news for contractors is that unlike employees, they are often hired with written agreements, and because contractors’ works are not presumed to be works for hire, the contractor may still retain the intellectual property rights in what he or she created-so long as there’s nothing in any agreement making creative items work for hire.

Call the West Palm Beach commercial litigation lawyers at Pike & Lustig for help today if you have a business law dispute or a copyright related problem.



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