Arthur R. Lehman, L.L.C.

Exception to copyrights: work for hire doctrine

New York residents hold a copyright in original works they have created, so it is important keep in mind the few but important exceptions to this general rule. Intellectual property rights exist in various forms to protect original forms of work, but where the work has been made by an employee during the course of their work, it may be considered a "work for hire" and therefore the property of the employer, not the employee. Under the work for hire doctrine enshrined in the Copyright Act, all rights that exist in the work belong to the employer and not the employee.

What does this mean for an employee? This means that if a New York employee has created a brochure or a newsletter as part of their job, the rights to the work are probably owned by the company that commissioned the work. However, not everything belongs to an employer. If an employee creates something in their spare time and the creation has nothing to do with their employment, the employee would own the intellectual property rights in that piece of work.

Contractual employees are affected by this doctrine, as are some freelance workers, such as photographers or journalists. Even where their work might not come under the work for hire doctrine, it is possible that the contract they signed assert that any work created is a work for hire and therefore the employer owns the rights to the work. For this contractual provision to create a work for hire where there previously was none, it is essential for both parties to sign the contract. Employees or consultants may want to consider getting more information about this particular doctrine so there is no confusion about who owns rights and there is no possibility that an intellectual property dispute arises.

Source: Legal Information Institute, "work made for hire," Accessed Nov. 17, 2015

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