Disclosure of Confidential Information by a Former Employee

It has been brought to my attention that there is confusion regarding Copyrights and Works for Hire Agreements.

Copyright Owner

Copyright law protects original works of authorship and grants “authors” of such works the exclusive rights of reproduction, distribution, performance and display. The author of a work is generally defined as the person who actually created the work. This is also the owner of the copyrighted work. However, if someone creates copyrightable material in the scope of his or her employment (part of employment responsibilities) or agrees in writing to create something for someone else as a “work made for hire,” then copyright ownership belongs to the employer or other person for whom the work was prepared.

Works Made for Hire
A “work made for hire” is either one of the following:

  1. A work prepared by an employee within the scope of his or her employment
  2. A work specially ordered or commissioned for use, if the parties agree in writing that the work shall be considered a work for hire.

Employee Versus Independent Contractor
Copyright ownership will generally belong to the employer when the employee creates the work within the scope of employment. In contrast, if a copyrighted work is created by an individual, outside of their employment then they own the copyright.

Factors used to determine whether someone is an employee or an independent contractor include:

  • Skill required
  • Source of tools
  • Location of work
  • Duration of relationship between parties
  • Hiring party’s right to assign additional projects to hired party
  • Extent of hired party’s discretion over when and how long to work
  • Method of payment
  • Hired party’s role in hiring and paying assistants
  • Regular business of hiring party
  • Provision of employee benefits
  • Tax treatment of hired party

Contact us if you have questions about copyright ownership.

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