Creative works are by and large protected under U.S. copyright law. If you paint a painting, author a book, or even write computer code, the Copyright Act of 1976 gives you certain exclusive rights. There is an important exception to these intellectual property rights, however: If you created these works in the context of your employment, then the copyright might actually belong to your employer, and not to you. How does this work, and can you do anything to keep your rights?
Basics of U.S. Copyright Law
Before considering the effect of your employment, it's helpful to understand the various exclusive rights granted to copyright holders by the federal Copyright Act in the absence of an employment relationship.
Under 17 U.S.C. § 106, copyright holders have the exclusive right to reproduce their work (in other words, make copies of it), create derivative works (that is, adaptations based on the original work), distribute the work (spread it to others across different channels), and publicly perform and display the work (show it to the world in various forms).
This bundle of rights allows a copyright owner to control the ways in which the work is used. The owner of these rights can monetize them by selling, assigning, licensing, or retaining their exclusive rights.
Moreover, if someone infringes upon any of these rights—for example, by taking a book, photocopying it, and selling it—the owner can sue that person for copyright infringement. That lawsuit can result in various types of monetary damages, including actual damages, lost profits, and statutory damages.
In short, the Copyright Act gives significant rights and powers to copyright holders, particularly when the copyright is registered with the U.S. Copyright Office, a step that confers certain additional legal protections as well as the right to sue in federal court.
What Rights You Have in Works Made in the Course of Employment
The calculus of these exclusive rights changes if you create the work as part of your job. The Copyright Act includes two different types of employment that might result in the transfer of copyright to one's employer. Under 17 U.S.C. § 101, a "work made for hire" is one that was:
- prepared by an employee within the scope of his or her employment, or
- 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. ... 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.
Works Prepared by an Employee
Part 1 of the definition in § 101 above includes "standard" employees, who produce creative output as part of their employment.
A staff writer for Vogue, for instance, who writes a review of a new fashion line, would not retain the copyright in that article; the magazine would. A sound recording by an engineer at a record label would not retain any copyright in the recording; the label would. A cameraman for a news network would not retain any copyright in his original video content; the network would. In all of these cases, the employee was creating original content in the context of salaried employment. In effect, the creativity is part of the person's job.
To illustrate the policy goals behind this piece of the law, consider this example: Susie works for an advertising agency. She is assigned to create various designs for the agency's clients that are used in magazine ads. When she gets home, she decides to sell those designs on T-shirts, which she offers on her personal website.
As you might expect, Susie's employer would not be happy. From the advertising agency's perspective, those designs were made as part of her job, for which she was already paid. One could imagine how difficult it would be for the agency to explain this situation to its clients. Under § 101, the agency would have a legitimate claim to copyright ownership over Susie's work product.
Works Created on Commission
Part 2 of the § 101 definition covers works created on commission—essentially, works that are created because the creator was specifically hired to do so (outside of a "normal" employment relationship, such as a 9 to 5 job).
Many creative works are the result of a commission. Imagine that your company hires someone to design a website. Or imagine that your company hires a writer to draft its brochures. Or that your company hires a photographer to take pictures of your employees for your company website.
In all of these situations, you would anticipate that any copyright belongs to the company paying for the service. You would not expect that the service provider would retain intellectual property rights in the creations because it was your business that actually paid for them.
Checking the Terms of Your Employment Contract
While the work-for-hire doctrine contained in § 101 is the default under the U.S. Copyright Act, the specific terms of an individual employment contract will supersede that. In other words, you can "contract out" of the work-for-hire doctrine.
If you believe that, during your employment, you will create particular works that you will want to retain copyright ownership of, you can negotiate to have such rights included in your employment contract. Indeed, it is common for employees to retain certain intellectual property carve-outs or rights as a term of an employment agreement.
Not surprisingly, your ability to insert such a clause into your employment agreement will depend on your bargaining power. It's possible that an employer might balk at the notion of letting you retain any rights to works you create while being paid.
However, some employers might be willing to bargain. For example, perhaps you could retain copyright in certain specific works, but not all the works that you create during your employment. Or perhaps you could retain rights for a certain period of time. The broader point is that all of these sorts of ownership rights are negotiable; if you can agree upon language for your employment agreement, that agreement will govern over the works-for-hire doctrine.