Who owns the creative works of independent contractors? Copyright Edition
The author of the creative work owns the work by default. Ordinarily, the author is the person who created the work. In some situations, the author may be an employer or a person who “specially ordered or commissioned” a work for use:
as a contribution to a collective work,
as a part of a motion picture or other audiovisual work,
as a translation,
as a supplementary work,
as a compilation,
as an instructional text,
as a test,
as answer material for a test, or
as an atlas.
In these situations, the author (and owner by default) of the work is the person who specially commissioned it, as long as there’s an express written agreement that the work is made for hire.
That tells the story of authorship, but it doesn’t tell the whole story of ownership. By default, the author is the owner. But parties can agree (in writing) to transfer ownership. 17 U.S.C. § 204 requires that any transfers be in writing, so an oral agreement to transfer a copyright interest won’t be effective.
Why should you care about the difference between transfer and work-made-for-hire? With a transfer of ownership, the author may be able to terminate the transfer 35 years after the grant. A company that is an author of a work-made-for-hire is not subject to termination rights under 17 U.S.C. § 203, which explicitly exempts works made for hire from termination rights.
Without a signed, written instrument (i.e., one in compliance with 17 U.S.C. § 204), ownership of a copyright interest does not change hands. Even so, if a first party creates a work specifically for a second party, it’s possible that second party could have acquired an implied license to use the work in the manner contemplated when the first party was contracted, even if the second party fails to own the work outright. If a photographer shoots photographs for a textbook publisher, they shouldn’t be surprised if that publisher wants to use the photographs in a textbook after paying the photographer—even if the publisher fails to get a written agreement with the photographer delineating copyright ownership.