Graphic designers arent always work for hire

We have written a lot about copyright law from a number of perspectives, from fan fiction to YouTube. While these are fun jaunts for a IP geek, they don’t often have real life applications in the business world.  Today we are tackling something that many businesses bump into in a freelance economy. The business world is becoming more and more dependent on outside help from independent contractors for logos, marketing materials and other creative projects. One question that is often neglected in the process is the question, who owns the copyright for the work? Many assume that commissioning a freelance artist means that they are purchasing the rights to the work in its entirety. Others believe that this can be resolved with a simple “work for hire” clause in the agreement. In reality, both are wrong. If you are a company that utilizes freelance or contract work for various projects you need to read on. When you are done, I hope to give you a greater understanding of the concept of work for hire, especially in this freelance world.

Understanding Work For Hire In A Freelance World

Graphic designers aren't always work for hire Zachary Hiller Law Houston, TX

Legally speaking, a copyright is created the moment a work of authorship is created in a physical medium, from a pen and paper to a digital file on a computer. Typically, it is understood that the initial owner of the work is the author of the work. Generally speaking employees, when working on the clock or under the general capacities and duties of their job, automatically transfer ownership of their IP works to their company. This can get trickier when this work is commissioned by someone else, especially in a freelance capacity.  When a company contracts a freelance artist they typically believe that they are purchasing the fruits of their labor in their entirety, in a “work for hire” capacity. This basically means that the rights to reproduce, distribute and publicly display (among other rights exclusive to the copyright holder) are being purchased in addition to the original work. For a company purchasing a new logo or promotional material this can represent a major investment in their brand, so these rights are crucial to their companies long term success. It would surprise many to know that concept of work for hire does not include such items.

In fact, there are nine types of works that are eligible for work for hire status. These nine categories are statutorily mandated and are only applicable in conjunction with a carefully crafted “work for hire” written agreement. The categories, taken from the American Bar Association, include:

  • A contribution to a collective work such as a magazine, anthology or encyclopedia, where a number of submissions are edited and assembled into a collective “whole”
  • a part of a motion picture, video or other audiovisual work
  • a translation
  • a “supplementary work” which includes; appendixes, maps, charts, tables, musical arrangements, etc. These are prepared for publication as a secondary adjunct to a work by another author for the purposes of revising, commenting on, illustrating, etc.
  • a compilation, or a work formed by the collection of pre-existing materials that are combined in such a way that the new piece constitutes an original work of authorship
  • an instructional text
  • a test
  • answer material for a test
  • an atlas

So even contracts with freelance contractors that contain “work for hire” clauses would only protect a business if they are commissioning a piece within the above categories. There are not many companies that would hire out for works that would fall into these themes. In many cases negotiations with freelance artists imply that the copyrights are included with their work but it is never smart to rely on an implied good. So what is the average business to do to ensure that they own their logo, promotional materials, or website? (Yes, even websites represent a copyright-able good.) The best option is to work with a copyright attorney to create a contract that ensures the proper copyright assignments once the work is complete. A qualified attorney can help navigate the tricky waters of copyright law, ensuring that you not only own your logo but you also have all of the protections in place to ensure that your brand is truly yours to use as needed in the marketplace; from reproduction to distribution to licensing and all points in between.

Are you  now asking yourself is your logo really yours? What about your website? Do you really own your brand? If you are unsure, contact the offices of Zachary Hiller today. We can offer an intellectual property audit that will ensure your assets are protected, now and in the future. Call us for a free consultation today.

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