EMPLOYMENT LAW BULLETIN

Vol. 01, No. 06

Courtesy of Eskridge Law, Attorneys at Law

How can an employer protect its interest when its employee creates an artistic and creative work such as an art work, a musical work, or a pictorial, graphic or sculptural work?

Copyright Statute 201 states that initial ownership belongs to a person who creates a work on his own motivation and is therefore the author of the work. The statute contains a special employer provision, however, regarding "Works Made for Hire."

"Works Made for Hire" refers to works created as part of one's job. Basically, the law holds that when a work is created as part of an employee's job, the employer is the author, and therefore the owner of the copyright unless the employer and employee expressly agree otherwise in a signed written document. Some important specifics which employers should be aware of are set forth below.

• The employer will be the author of the Copyright work only if the work was prepared by an employee within the scope of his or her employment. The distinction between employees and independent contractors therefore becomes very important. In order to maintain ownership of copyrights, employers must always make it clear the hired party is an employee rather than an independent contractor. A good place to emphasize the employee's status is in an Employee Handbook.



• Works created by Independent Contractors can be deemed Works Made for Hire only if:
1. The work is (i) part of a motion picture, (ii) part of a audiovisual work or (iii) a translation, and
2. If the employer and the employee have expressly agreed in a signed writing that the work will be considered a Work Made for Hire.

Get Help from an Experienced Attorney! It is extremely crucial that an employer consult a knowledgeable attorney to protect its ownership of all copyrights. Further, employers are strongly advised that in drafting employment handbooks be sure to make it clear that the employees are assigning their rights in their creative and artistic work to their employer. If you have an employee handbook, have an attorney update it to include this provision. If you do not have an employee handbook, retain an employment law attorney to prepare one for you.

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