Work for Hire Creations: Employees May Not Own What They Create
Many of us have jobs where we create things for employers. We make slogans, create art, design websites or paper materials, or write stories, songs or promotional materials. It may be your entire job description, or just a small part of your overall job duties.
But who owns what you create for your boss? For example, if you write a fantastic, creative slogan for your boss, and that slogan is everywhere on social media, and your boss and the company make millions from that slogan that you came up with, can you get paid for what you created?
Work for Hire
The short answer is no, you don’t own what you created—and that’s why if you are in the business of creating anything for your employer, you need to be aware of the work for hire doctrine.
The work for hire doctrine generally says that any intellectual property that you create as a part of your job duties, doesn’t belong to you—it belongs to your employer. Intellectual property includes anything that can be copyrighted, trademarked or patented.
That means you don’t get paid extra if what you created goes viral and makes millions. You can’t personally profit from what you made. It also means that if you leave (or get fired from) the company, you don’t have the right to use (or make money from) whatever you created for your old boss.
But the work for hire doesn’t apply as easily, if you create something for someone else as part of your job, if you are an independent contractor. Of course, employers will always say you were or are a full employee, in order to allow them to have full control over whatever it was that you created for them.
But courts look at things differently. They will look at things like where the work was created (in your employer’s office, or outside of it), how much the employer controlled you in your job duties, how much your employer controlled your schedule, and whether or not you had taxes withheld, the way a traditional employee would have.
Requirements for Work for Hire When You are a Contractor
If you did create work for an employer and you were an independent contractor you still may not own or control whatever it is that you created.
If the employer specifically hired, commissioned, or paid you to create the creative work, the employer still may own the intellectual property you created. There also needs to be something in writing, saying that whatever you made, was a work for hire assignment or creation.
Note that if you are a full employee (not a contractor), no written agreement needs to exist—it is automatically assumed that whatever you made as part of your job, is a work for hire assignment, and thus, your employer and not you own the intellectual property.
Contact the San Jose employment lawyers at the Costanzo Law Firm today for help protecting your rights at work.