In addition, many works do not have a useful life of more than 35 years. In addition, termination requires action on the part of the contractor. Very few of these individuals are likely to have an interest in terminating the assignment after 35 years, and even fewer are aware of the provisions of the Termination Rights Act. In general, the doctrine of for-hire work is important because it automatically transfers the copyright of an employee or independent contractor to the hiring party. This automatic transfer is regulated by law. Section 101 of the U.S. Copyright Act defines a “commissioned work” as follows: Explain the payment relationship. Who is the beneficiary (your company)? Who receives payment, in what form and when? This is important in order to establish the “for rent” concept. A Work for Hir contract can also be used to ensure that the contractor does not retain any rights to the product or work created. Without formal agreement, the rights cannot be transferred to the client who acquired the work.
For this reason, these agreements are often used when hiring writers and artists for projects. The term “employee” for copyright purposes is an employee under what is called the agency`s law, not the common law definition of an employee. If an independent contractor does the work, it should be ordered or commissioned and there should be a contract. If a customer owns ownership of your work as a commissioned work, you, as an artist, initially have no copyright. The most important consequence of this teaching is that you cannot control what the client does with your work. The client may publish the work wherever and whenever he wishes, including the resale rights to others. If you don`t get permission from your client, you can`t do anything with your work yourself. You don`t even necessarily have the non-commercial rights to show your work, para. B example in your wallet (although it is common to allow such use, and there would probably be a good “fair use” defense for such use). Second, if you are not an employee, your client can only own your work as contract work if: Reject all rights to higher remuneration.
If none of the above suggestions work and your client insists on transferring all copyrights for an unlimited period of time, you negotiate an assignment (not for rental work) and higher fees in exchange for such a drastic loss of your copyright. If you encounter resistance, remind your client that they are essentially demanding the equivalent of the rights they would have to an employee`s work product without bearing the cost of salaries, benefits, office space and equipment, all the costs you have to bear for yourself as a freelancer. By transferring the copyright to the customer, you waive all rights to the future revenue from that work. Mission expenses must not only offset your current expenses, but also the loss of future income and the risks and overhead you incur as part of your freelance status. In any case, an assignment or license of copyright is always expressly linked to the full payment of the compensation to which you are entitled under the contract. It is very important to make sure that your copyright is not legally transferred until you have been paid. If a copyright assignment or license is not related to payment, the courts have ruled that the copyright has already been effectively transferred at the time the contract is entered into. This does not allow you to claim that continued use of your artwork without payment constitutes copyright infringement. Instead, your only recourse is a breach of contract claim to get the fees paid. Unlike copyright infringement, infringement does not entitle you to an injunction to prevent further use of your work, legal damages, or attorneys` fees (see Legalities #1, subtitle: Register your copyright!) So, if you condition the assignment of copyright or license on full payment, make sure you are in the best negotiating position in case your client does not pay you. Visibly absent in the nine categories is what is called a “literary work”.
Computer software is considered a literary work for copyright purposes. Therefore, unless computer software falls into one of the other nine categories, it is not a work intended for rental under the Copyright Act. Without written assignment to the tenant, the independent contractor is the author and owner of the developed software. Obviously, that may not be what the parties intended to do. For independent contractors, signing a pay-for-work contract will reassure your clients` thoughts and reassure them that they own the work they paid for. The main reason for a lease is to make explicit the ownership of the creative work. Since the risk associated with using an assignment instead of a WMFH clause is therefore limited, assignment is the employer`s best option to take possession of the necessary rights. However, in order to maximize their intellectual property rights and options, many employers draft independent contractor agreements that include both a WMFH clause and an assignment clause, the latter being triggered when the work in question is not considered work for rental.
This approach does not take into account a significant disadvantage of using the term “work for hire” that can cause unexpected problems for employers. If you`re considering hiring an independent contractor temporarily, a paid employment contract can help you and the contractor understand what the project entails and what to expect from the contractor. .