Legal Question in Intellectual Property in California

Copyright ownership

I'm a freelance graphic designer. Many of my

clients are

design firms themselves, and I want to make

sure I

have the right to display my own designs on my

website (or in any other promotional materials). I

think

that under the ''fair use'' act I do have the right, but

my

question is regarding who retains ownership of

the

artwork. It IS my original artwork, but I did get paid

to

produce it for someone else. This is where my

concern

stems from-

TITLE 17 CHAPTER 2

Sec. 201. - Ownership of copyright

(b) Works Made for Hire. -

In the case of a work made for hire, the employer

or

other person for whom the work was prepared is

considered the author for purposes of this title,

and,

unless the parties have expressly agreed

otherwise in

a written instrument signed by them, owns all of

the

rights comprised in the copyright.

- So does this mean I don't have the right to

display my

work? That I don't own it? that doesn't seem to

make

sense to me. I could really use some advice

before my

site goes live. Thank you!

Asked on 4/25/02, 3:44 pm

4 Answers from Attorneys

Timothy J. Walton Internet Attorney
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Re: Copyright ownership

Were you an employee? Do you have a written contract? I can provide more information once I know more of the facts.

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4/25/02, 4:12 pm
Jeff Lambert Attorney at Law
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Re: Copyright ownership

Your answer is provided in the Copyright Act at 17 U.S.C. section 101, which provides in relevant part:

"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."

If you are not an official employee of your clients, which you likely are not from your message, you will fall into the second paragraph. If the work you do is specially commissioned for the client AND you have a signed writing by the parties designating your work as a "work for hire," then the client owns the work. If no such writing/agreement exists, then you are the presumptive author--and thus copyright owner. However, please note, a signed writing treating the work as a "work for hire" is subject to interpretation at some level. For instance, if you both sign a work order that could be construed as a "work for hire" agreement, you could be open to a potential lawsuit. The particular facts of your situation, as with any potential legal dispute, highly drive the respective rights and obligations of the parties. However, assuming you do your work pursuant to an oral contract with your clients, you may presume that you are the rightful copyright owner and display your work as you please. If you do business with any kind of written paper trail, you will need to tell me, or another attorney, your specific facts to get an appropriate answer for your situation.

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4/25/02, 4:54 pm
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Re: Copyright ownership

The analysis of your rights to display your artwork depends on the nature of your relationship with the graphic arts firms (i.e. employee or independent contractor) as well as what your written contracts (if any) stated.

More importantly, you need an attorney to review all future contracts to protect your rights.

I am an intellectual property attorney and law school professor of intellectual property law. You can see my bio at http://www.schinner.com/html/the_schinner_law_group_-_d__al.html

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4/25/02, 5:18 pm
Keith E. Cooper Keith E. Cooper, Esq.
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Re: Copyright ownership

Your question implies that you are an independent contractor and not an employee, so it is arguable that you own the copyright in the work you do. However, it is more likely that your clients have secured the rights in your work when they hired you, either through a contract or some other writing.

As an attorney representing motion picture companies, I have done a great many work-for-hire agreements. What I do, and what is fairly standard in the motion picture industry, is for the company to contractually give the independent contractor the limited right to use their work on a "reel" or other marketing materials, even though the company owns the copyrights. It sounds as if that might work for you.

If your contracts do not clearly give you the right to show your work as samples on your web site, ask your clients for written permission to do so.

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5/08/02, 4:12 pm

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