Copyright Law and Your Creative Muse

Written by Lisa Fantino
Posted: June 10, 2009 @ 9:06 pm

Lisa Fantino, Lady Litigator

So, your creative muse is singing away but is her voice silenced as soon as you begin working for someone else, either as an employee or as an independent contractor on a commissioned piece? Well, that depends. Generally, intellectual property which you create while on the job working as an employee, creating items such as cartoons, comics, computer software programs, photographs, articles, logos, website designs, songs etc., will belong to your boss, as if your boss was the creative energy that inspired the masterpiece. As to a work created by you as an independent contractor for a third-party, the creation must fall into one of nine categories enumerated in the statute AND you must have a written work for hire agreement.

Until 1978, employees in the creative arts literally hung up their intellectual property rights as they crossed the 9 to 5 threshold. Artists, photographers, journalists, designers, musicians, lost almost all of their copyright protections prior to a major change in the 1976 Copyright Act which sought to clarify the protections afforded a “work for hire” and whom should receive them.

So where does that leave you as a creative person looking to develop your art and talent and still put food on the table? Well, you should know that the term of copyright for a work is generally the life of the creator/author plus 70 years; whereas the term of copyright protection for a work made for hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. Further, if you are an employee and create a work within the scope of your employment, unless you have a contractual exception with your boss, your boss will own the rights in that work. Fortunately, the work for hire rule does not extend to creations made outside the scope of your employment. Therefore, if you are an artist sketching a character for an advertising agency or production house, the agency or company will own the rights in that character unless you have a contractual provision to the contrary. However, if you doodle a character on your own time and score a deal with a major syndicator, hurray for you! The rights stay with you; the big bucks go in your pocket; and you may soon say goodbye to your 9 to 5 boss.

Now, what about commissioned works, where someone calls you and asks you to do a sketch, painting, photograph or musical composition as an independent contractor? You must have a written agreement that clearly retains all copyrights for you, the artist. Further, the work made for hire doctrine is limited to nine types of specifically commissioned works including: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, supplementary work, compilation, instructional text, test, answer material for a test or an atlas. With these types of works the artist and the commissioner must clearly have a written agreement that designates the artist=s contribution as a work made for hire. Generally, unless the work for hire falls into one of the nine categories listed above, it will not be considered a work for hire and the rights will remain with the artist.

The other possibility is where the artist/inventor/creator is incorporated herself. This may vest copyright ownership in the corporation rather than the creator, even though the creator IS the sole shareholder of the corporation. This could affect your rights at some future date if the corporation is ever dissolved. Courts have been grappling with this very issue for some time as highlighted in the New Hampshire case of Embassy Software Corporation v. ECopy Inc., 2009 WL 74350 (Dist. N.H. 2009) and the Maine case of Morgan, Inc. v. White Rock Distilleries, 230 F.Supp. 2d 104 (Dist. Me. 2002). Therefore, it may be a good idea if you incorporate to have a written agreement with your corporation preserving the copyright in yourself as the individual.

It is also important to keep in mind that while copyright regulations may be similar from country to country, jurisdictional application of the work for hire rule often differs widely and hiring parties should obtain assignments of copyrights from artists in all territories in order to procure international copyrights.

The opinions offered here are for general and educational purposes only and not meant to offer legal advice. It is always best to consult an attorney on your own particular situation.

About the Author

Lisa Fantino is an award-winning journalist turned attorney with a general and entertainment practice in Mamaroneck, NY. You can find her all over the web at her Lady Litigator Blog; Lady Litigator on Facebook and even on Twitter.