Work Creations: Who Owns Them?

Column by Steve Strauss

If you create a product at work, who owns the rights to it — you or your employer? Does the graphic artist own the rights to work she produces for the advertising studio for whom she works? Does the tech writer own the rights to the manual he drafted? Well, I hate to sound like the lawyer that I am, but the answer is...it depends. The thought that an employee might be able to claim ownership to a product created at work should concern many businesspeople.

Consider this true–life story: A community group commissioned a sculptor to create a sculpture for their building. They told the sculptor exactly what they wanted. Then he went ahead and created it, and they paid him in full. Later, a dispute arose over who had the right to reproduce the sculpture. In a case that went all the way to the Supreme Court, it was decided that the sculptor owned all rights to the work.

In the absence of an agreement to the contrary, the law presumes that an employer owns the copyright and all related rights to any work created in the scope of employment. The key here is whether the work was created as a result of the employer–employee relationship. The legal term for this is work made for hire.

Work made for hire?

Courts will look at the following factors when deciding whether an item was a work made for hire, and therefore owned by the employer:

• Who initiated the creation of the work—the employer or the employee?
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• Who controls the process? Does the employer have the right to direct and supervise how the item is created and the work is performed?
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• Who paid for the materials?
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• Who owned the facilities where the work was created?

The more the answers come out in favor of the employer, the greater the likelihood that the employer will own the product. In the case of the sculptor mentioned above, the courts ruled that since the sculptor created the artwork in his own studio, had total discretion regarding materials, processes, etc., he wasn't really an "employee" per se. So the sculpture rightfully belonged to him. In most instances, when an employee creates a product at work, during work, that product will belong to the employer.

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