IP Independence: Using Contractors

Using independent contractors has its perks: an independent contractor is not an employee, so an employer can save by using contractors for certain services. But does an employer automatically own creative works created by its independent contractors? In short: probably not.

The Default

Thanks to the Work for Hire Doctrine, an employer generally owns the copyright in all works created by its employees that were made within the scope of the employee’s job. In plain English, this means that, generally speaking, an employee that routinely takes photographs as a part of his or her job does not own the copyright in those photographs — the employer does. The same rule would apply to an employee that routinely creates graphic designs as part of his or her job, or any other creative work. This is the default rule unless there is something in writing to the contrary.

On the independent contractor side, the contractor (and not the client) is the default owner of any original works that the contractor creates as a part of the contractor-client relationship, again without something in writing to the contrary.

What Does It Mean?

Think about what this means. It means that, if you’re an employer using contractors, you can pay a contractor for certain services and still not own the results of those services (photographs, graphic designs, and websites often fall under this category). If you’re a contractor, it means that you are the default owner of all of the creative works you create for a client and might be able to publish those works (absent a confidentiality, non-disclosure, or similar applicable provision, of course). Remember that copyright is often referred to as a “bundle of rights” and the owner of a copyright has the sole and exclusive right to reproduce, sell or distribute copies, and perform the copyrighted work.

The Fix

Get it in writing. It’s important that both sides to the contract are on the same page when it comes down to who owns what. A work-for-hire agreement makes clear that the independent contractor’s creations belong to the client. An independent contractor agreement can also clear up the ownership of any IP.