So who owns the copyright? It is not always as clear as you may think!

Often times many believe that if you pay a third party to create an artistic creation, that it is automatically your copyright. The assumption usually goes like this: “I paid that person to make my design and we even had a contract stating that I would pay x amount and he/she will make the design”. However, this is not how copyright law works. The fact that you have a contractual agreement with a third party does not by itself mean that you are the copyright holder of the design in question. Now, before I go any further, I would like to mention that there is what is called the “work-made-for-hire” exception. This exception means that when you are an employee of a company – and you are doing work within your scope – your work will belong to the company. But, this is not what I am focusing on in this blog. My main focus is about the misconception that the average entrepreneur encounters usually in the context of hiring an independent contractor to do the work. In such situations, unless you properly execute the transaction, you will not be the copyright owner of the design in question. Essentially, you will be developing a product thinking it is yours – because you paid for it – but, unfortunately, the creator will still be the copyright owner (i.e., the independent contractor).

So what should you do? There are generally two quick ways to protect yourself and solve the problem. The first option is to prepare an agreement where the independent contractor agrees that the work to be made is essentially “work-made-for-hire” – which will make you the copyright owner when the work is complete. However, that approach has its limits and does not apply to all types of works. Another way to solve this dilemma is to make an arrangement in which the creator – in consideration for the work – will agree to sign over all of the rights to the work when the work is completed. If this written agreement is drafted and executed properly, the entrepreneur (you) will be able to use the design and own it!

Once you become the copyright owner of the work, you should consider registering the work with the Copyright Office to receive greater protection. Indeed, your work is protected by copyright law the moment it is created (without registration), but, you should seek to get a copyright registration to establish a presumption of ownership and to receive greater protection. I would like to add that it is also a good idea to add the copyright symbol © next to the work to put others on notice. It is not required, but it is a good way to deter a potential infringement on your work.

If you need help drafting your agreement or registering your copyright, an intellectual property attorney can help you. Get it right the first time!


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