You may be wondering who owns the copyright of original works of authorship when they are developed during the scope of employment. The key issue in a circumstance such as this is whether the work was done as an independent contractor or as a work made for hire. Recently, this issue is being addressed more often due to the rising number of independent developers in the video game industry.
As mentioned in a previous Revision Legal article, The Ins and Outs of Copyright Law, “A copyright exists for works that are ‘original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’” 17 U.S.C. §102 (a).
Works Made for Hire
Section 101 of the Copyright Act defines a “work made for hire” in two parts:
(a) a work prepared by an employee within the scope of his or her employment; or
(b) a work specially ordered or commissioned for use
(1) as a contribution to a collective work,
(2) as a part of a motion picture or other audiovisual work,
(3) as a translation,
(4) as a supplementary work,
(5) as a compilation,
(6) as an instructional text,
(7) as a test,
(8) as answer material for a test, or
(9) 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. 17 U.S.C. § 101.
“If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration unless the parties involved signed a written agreement stating otherwise.” See Copyright Circular 09.
Who is an Independent Contractor?
According to the Legal Dictionary, an independent contractor is “a person who contracts to do work for another person according to his or her own processes and methods. The contractor is not subject to another’s control except for what is specified in a mutually binding agreement for a specific job.” Moreover, under the general common law of agency, an independent contractor is someone who is not an employee.
According to the U.S. Copyright Office, “A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire.” Therefore, if a copyrighted work is made under an independent contractor relationship and does not meet the requirements set out above to qualify as a work made for hire, then the author would otherwise be known as the owner of the copyrighted work.
For more information about the development of video games, contact Revision Legal’s copyright attorneys through the form on this page or call (855) 473-8474.
