Jeffrey D. Harty
McKee, Voorhees & Sease, P.L.C.

The word "copyright" is descriptive – the right to make copies.  The copyright laws protect original works of authorship, such as books, movies, sound recordings and computer programs.  The question of whether a copyright exists to protect a particular work from unauthorized copying is easily answered.  Often a more difficult issue is determining who actually owns the copyright. The answer is not always intuitive and many are shocked to learn that after spending significant sums of money to acquire the work, they do not own the copyright.

Copyright laws have always favored the rights of authors over publishers.  Therefore, copyright laws begin with the proposition that rights initially reside with the author(s) of a work.  A major exception to this rule of ownership is for works created as part of one's job, called "works made for hire."  For a work made for hire, initial ownership vests in the employer, who is considered the author.  There are two ways in which a work for hire can be created.  The first is for works created within the scope of employment.  For example, a computer programmer who works fulltime as an employee for a software company will not own the copyright in the software she creates unless she and the company enter into a written contract designating the employee as the author.

Works made for hire are not limited, however, to the employer/employee context.  Specially commissioned works created by independent contractors also can qualify, providing two important requirements are met.  First, the work must be of a particular type (e.g. translation, compilation or instructional text).  Second, the parties must also expressly agree in writing that the work shall be considered a work made for hire.  Absent such an agreement between the commissioning party and the independent contractor, the independent contractor owns the copyright.

For example, where a firm hires an independent contractor to write questions for a national exam, the firm would be considered the author of any copyright in the test questions, providing the parties had agreed in writing that the material is considered a work made for hire.  Without such an agreement, the independent contractor would own the copyright.  Not surprisingly, many firms are surprised to learn after-the-fact that they do not own the copyright in what they paid an outside party thousands of dollars to create.  What they paid for was only a copy of the particular work, but not the copyright.

All too often copyright ownership issues are first dealt with after disputes arise.  The more prudent course of action is to consider ownership issues up front, before any agreements are reached and the work is created.


Jeffrey D. Harty is a patent, trademark and copyright attorney with the Des Moines, Iowa-based firm of McKee, Voorhees & Sease, P.L.C. His practice focuses primarily in intellectual property litigation. For more information, log onto www.ipmvs.com or call 515-288-3667.