What Happens to My Copyright Now that I’m an Employee?
With the passing of AB 5 and AB 2257, more workers who were previously classified as independent contractors will now be classified as employees. But, what does that mean for artists, writers, and creative workers who create copyrightable works for those who hire them?
Most employment agreements have a ‘work made for hire’ clause in them that states that copyrightable works created by an employee during the course of their employment belong to the employer. Essentially, the ‘work made for hire’ clause automatically bestows copyright ownership to the employer.
…Let’s take a very brief look at copyright ownership rights.[i]
Quick Copyright Ownership Rights Primer
Owning the copyright to a work gives you a bundle of rights in relation to that work. You get the right to: reproduce the work (e.g., copy); create derivatives of the work (e.g., The Fast and the Furious: 2 Fast 2 Furious); distribute the work (e.g., posting on social media); public performance of the work (e.g., Shakespeare in the Park); and publicly display the work (e.g., hanging your niece’s finger painting on your fridge). If your work is a sound recording, you also get the right to perform the right publicly by means of digital audio transmission (e.g., listening to podcasts on your phone). Copyright ownership means you get to exploit these rights and authorize others to exploit these rights; and if someone else exploits these rights without your permission, they have infringed upon your copyright.
Okay, back to this ‘work made for hire’ situation…
Typically, you automatically own a copyright in anything you create so long as it is in a tangible form. However, this is not always true in employer-employee relationships because Title 17 of the United States Code[ii] defines one type of a ‘work made for hire’ as “a work prepared by an employee within the scope of his or her employment.”[iii] Copyright law explicitly allows employers to obtain copyright ownership for anything[iv] employees create for the employer. While this may sound unfair, can you imagine if every time an employee made a pivot table of annual sales goals, or a sign-in sheet for volunteers, or a press release that they would need to sign over their copyright in those works to the employer so the employer could use those works going forward?
In traditional, non-creative workplaces, this setup makes a good amount of sense. But, what about set, sound, and costume designers, or writers who create new works? Are you required[v] to sign over your copyright simply because you’re an employee now? No!
Enter our new friend, the License.
Written employment agreements can include a copyright license instead of a ‘work made for hire’ clause. Copyright licensing means that (1) the creative worker gets to retain ownership in the copyright for the works they’ve created, and (2) the employer gets to use the work for business purposes without infringing copyright. There are a lot of factors that can go into a copyright license, but the main ones are scope of use and length of time.
Copyright licensing in employment agreements essentially says “the worker retains their ownership of the copyright, but the employer can use this work for X amount of time and for X number of reasons.” You don’t want your work publicly displayed after one year of use? Put it in the license. Are you only allowing the theater company to use your set design for this current production and any future uses need to include a new license agreement? Then, if it has been written, so it shall be followed!
Before signing an employment agreement, discuss this option with the other party. If you are the artist, ask the employer whether they have a copyright licensing option in their agreements. If you are the employer, consider adding licensing language to your current employment agreements.
[i] 17 U.S.C. § 106, “Exclusive rights in copyrighted works.” [ii] United States Copyright Law, Title 17 of the United States Code, https://www.copyright.gov/title17/title17.pdf. [iii] 17 U.S.C. § 101, “Definitions.” [iv] This refers to works created within the scope of employment, i.e., work that someone is actually doing for their employer or with their employer’s tools/resources. So, the copyright in the vases you throw for your pottery business doesn’t belong to your employer at the school where you teach. However, if you worked for a local ceramics store that made all of its merchandise in-house, and you used their studio and kiln to make your own pottery to sell at weekend farmers markets, that would be a much tougher argument to make. [v] Unless the employment agreement has a ‘work made for hire’ clause and the employer does require it then, yes. There may be times when this is appropriate, but it's not the only option.