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Intellectual property and work-for-hire rules

As a business owner, you may frequently be in the situation of having others create works on your behalf. You may have employees develop software, create graphics or write content. You may also hire an independent contractor to produce these and other types of works. It is important to know some intellectual property concerns that can arise as a result.

At its most basic, copyright law assigns ownership of a work to the person who created it. When the work in question is your company's logo or custom software, giving an employee or contractor the ability to use it and even sell it to your competitors would adversely affect your business. If a work falls into the category of a "work made for hire," you can retain ownership.

Ordering work from contractors

The rules defining work for hire vary somewhat depending on whether you are dealing with a contractor or an employee. When ordering work from a contractor, you need a written agreement stating the work will be for hire. You must also specifically order that work from the contractor.

Lastly, the Copyright Act sets forth nine types of works deemed work for hire. It can sometimes be difficult to tell whether a specific project meets this requirement. One way to defend against potential complications in this area is to have your agreement include an assignment to your company of any intellectual property rights connected to the work.

Employees

The law concerning employees is more straightforward. Generally, work an employee creates in the course of his or her employment belongs to the employer. However, even here, complications may arise. For example, what if the employee works on a project outside business hours? What if the work in question falls outside the scope of the worker's normal employment? Having your employee agreement include the assignment to you of intellectual property created by your employees is one way to address this issue.

As with other areas of intellectual property law, the issue of work for hire can present many complexities. Getting help from an experienced attorney can help you navigate these thorny issues.

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