Who controls Intellectual Property in the Workplace?

A “work made for hire” is a piece of intellectual property created by an employee or independent contractor of a company in which the rights to the property belong to the company, not the author.

There are many things to consider in regards to this law, the first being whether the author was an employee or an independent contractor.

The Supreme Court tried to define an employee in Community for Creative Non-Violence v. Reed. They determined that an individual was an employee if the employer has control over the individual or their work. An individual may also be considered an employee depending on the status of the relationship, such as if the employer withholds taxes from the individual or provides them with benefits.

If the individual is considered an employee and the work was created within the scope of their employment (not on their free time), the rights of the intellectual property belong to the employer.

If the individual is an independent contractor, the rules get more complicated. According to U.S. Copyright Law, a work created by an individual contractor belongs to the company if the work was specially ordered by the company or if the work was commissioned for use as:

– A contribution to a collective work
– Part of a motion picture or other audio-visual work
– A translation
– A supplementary work
– A compilation
– An instructional text
– A test
– Answer material for a test
– An atlas

The work is also the property of the company if the parties expressly agree in a signed written contract that the work will be a work made for hire.

Source: U.S. Copyright Office

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