Discussion:
(State of Oregon)
I'm a freelance web developer creating websites for small business clients. I'm reading some "" and I see that:
In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:
* (1) a work prepared by an employee within the scope of his or her employment; or
* (2) a work specially ordered or commissioned for use as:
o a contribution to a collective work
o a part of a motion picture or other audiovisual work
o a translation
o a supplementary work
o a compilation
o an instructional text
o a test
o answer material for a test
o an atlas So does my work qualify as a "work made for hire," even though it's done within a consultant relationship and not an employee relationship? Do I have no claim to the copyright of my designs whatsoever? Is there any way I can own the copyright and simply license it to my client?
Thanks!
Answer:
You can file for a copyright of your website at this website.
Im not sure about your other questions.
Answer:
My question is that I'm not sure I even own the copyrights to the websites I'm creating for my clients, set aside any thoughts about registering them. It appears to depend on whether my work qualifies as a "work made for hire." Here's the :
A “work made for hire” is —
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. So does "work made for hire" apply to my situation? By any IRS definition I am not an employee. I'm a sole proprietor doing consulting and contracting.
Answer:
If you receive monetary remuneration for creating a website (regardless of your legal relationship to the client) then it's a work-for-hire and you own nothing.
Answer:
If you receive monetary remuneration for creating a website (regardless of your legal relationship to the client) then it's a work-for-hire and you own nothing. Sorry Breezy, that's not correct. The statute means what it says. Unless the work was a commissioned work as described in section (2) of the quoted statute (found in the "definitions" in 17 U.S.C. 101), a work-for-hire only arises in an employee-employer context:
Artist who prepared fabric design was independent contractor, rather than employee of design's buyer, in determining whether design was work made for hire; although buyer provided artist with idea for design, design involved high degree of creative skill, buyer did not provide employee benefits, and there was no documentary evidence that buyer withheld taxes from artist's compensation. Langman Fabrics v. Samsung America, Inc., S.D.N.Y.1997, 967 F.Supp. 131
In determining whether work is "work made for hire" that will be excluded from protection under Visual Artists Rights Act (VARA), when hired party is hired to participate in numerous unspecified chores at hiring party's discretion the hired party is likely to be employee; conversely, when hired party is hired to complete or achieve specific task, it is more likely that hired party is independent contractor. Carter v. Helmsley-Spear, Inc., S.D.N.Y.1994, 861 F.Supp. 303
"Employee" within meaning of statute stating that work is made for hire if it is prepared by employee within scope of employment is to be understood in light of general common law of agency. Community for Creative Non-Violence v. Reid, 490 U.S. 730
Basically, the person creating the work must be an employee, as defined by applicable state law, working within the scope of his or her employment for "work-for-hire" to apply (again, unless its a commissioned work as defined above). Typically, an employee must receive a W-2 at the end of the year, and the employer must collect taxes from the employee's paycheck to qualify as an employee. Independent contractors are never employees for the purposes of work-for-hire.