Q. Who owns the copyright?
A. Generally, the person who creates a work is the owner of the copyright. Thus, independent artists, photographers and writers own the copyrights to their works. The only exceptions to this rule occur when a work is created by an employee as part of his or her job duties or when a work is created under a written ìwork-for-hireî agreement.
For example, free-lance photographers own the copyrights to the images that they allow to newspapers or magazines to publish. However, absent an agreement that provides otherwise, a newspaper or magazine will own the copyright to all works that their staff journalists and photographers create as part of their job responsibilities. The same is true for art directors working in advertising agencies. The only way that the copyright could belong to the creator in these situations is if there is an assignment of the copyright. Of course, any stories, photographs or artwork created by employees on their own time, would belong to the authors of the works.
Sometimes it is difficult to differentiate between an independent contractor and an employee as that term is defined by the Copyright Act. Most employment situations imply a regular, salaried employment relationship between the parties. However, there is no precise standard for determining whether a person is an employee or an independent contractor under the Copyright Act. A person can be an independent contractor under state law while he or she is an employee under the Copyright Act.
The copyrights to works created under written agreements as works for hire belong to the employer. The law requires that there is a written agreement between the parties. Unfortunately, work for hire agreements can be very simple documents that masquerade as invoices or receipts. Most independent artists, photographers and writers will not operate on a work for hire basis. They feel that to do so, would deprive them of their right to fully exploit their creative talents. Also, they feel they will be treated as employees without having job security or getting any employee benefits.
