How to Protect Your Intellectual Property Rights in Works Created By Contractors

Use written agreements to make sure that you get what you paid for.

Businesses often hire independent contractors (ICs) to do creative work, such as writing an article or book, designing a company logo, creating artwork or graphics, or developing architectural blueprints and designs. You might think that the hiring business would automatically own the work produced by the contractor -- after all, the business commissioned and paid for it, right?

In fact, however, you may not own the finished product, even if you pay an IC to create it for you. Unlike employees, whose work automatically belongs to their employer, ICs are independent business people, who can retain ownership rights to the work they create. To avoid losing the right to use the work you pay a contractor to create, you should enter into a written agreement up front, clearly establishing your rights in the finished product.

Copyright Rules

If you hire an IC to create a work of authorship -- such as written works, plays, music, art, graphics, photographs, computer software, films and videos, designs, and so on -- the finished product will be protected by copyright. The owner of a copyright has a number of rights to control how the work may be used, including the exclusive right to copy and distribute the work. If an IC retained the copyright to work you hired him or her to create, your right to use that work would be severely limited -- even though you paid for it.

To get around this problem, you'll need to enter into a written agreement with the IC. For certain types of creative works (called "works for hire"), you will own the copyright as long as you and the IC execute a written work-for-hire agreement. For other types of creative works, you will have to use an assignment -- a written agreement by which the IC transfers some or all of the copyright rights in the work to you.

Works Made for Hire

When you pay an IC to create a work made for hire, you are legally considered to be the work's author and are entitled to all copyright rights in the work -- but only if you and the IC make a written agreement stating that the work is for hire. (For more information and sample work-for-hire contract language, see Consultant & Independent Contractor Agreements, by Stephen Fishman (Nolo).)

Not every creative work can be a work for hire, however. Only work that falls into one of these categories can qualify:

• a contribution to a collective work, such as a magazine or literary anthology
• a part of an audiovisual work
• a translation
• a supplementary work, such as an appendix, bibliography, or chart
• a compilation
• an instructional text
• a test
• answer material for a test, and
• an atlas.

Works Not Made for Hire

If the work you want an IC to create doesn't fall into one of the nine work-for-hire categories, it will not qualify as a work for hire, and you are not automatically entitled to own the copyright to the work. In this case, you will have to make a written assignment agreement, in which the IC transfers all or some of the copyright rights to you. For information on assignment agreements and licenses, including sample contract language, see Consultant & Independent Contractor Agreements, by Stephen Fishman (Nolo).

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