Under copyright law, artists generally own the rights to the work they create. However, an exception exists when an artist’s work is considered a âwork for remunerationâ under section 101 of the Copyright Act. A work made for hire includes (1) a work created by an employee in the course of his employment and (2) a work created as a result of an express written agreement between the creator and a specific commissioning party of the work.
Scope of employment
The pay-for-work doctrine provides that any work created by an employee automatically belongs to the employer as long as the artist was an employee when the work was created and the employee created the work as part of the work. of his job. When considering whether a copyrighted work was created in the course of employment, many courts look at a number of factors, including whether the creation of the work was the type of task for which the employee has been hired, if the employee created the work substantially within the time and space allowed for the work, and if the employee created the work at least in part to serve the employer. Therefore, if an employee creates work outside of the working environment and on his free time and with his own resources, the employee owns all rights to his work.
In the wake of COVID-19, a massive change in the workplace has occurred in terms of when and where employees end their jobs. With many employees using remote workspaces, the line between an employee’s workday and personal time can be blurry and prone to misunderstandings compared to time spent in a traditional work environment. Not surprisingly, the pandemic has apparently made it more difficult to identify whether a work created by an employee was produced within the time and space allowed, and therefore âwithin the scope of employmentâ. Therefore, it is important that employers and employees clearly understand the limits and limitations of the work performed for hire doctrine in order to avoid future disputes and litigation regarding property rights associated with the work, including the law. to grant licenses and sue for copyright infringement.
Considerations for Employers
Many employers include a “made for hire” clause in their employment contracts. However, employers should also consider including an intellectual property assignment clause in all employment contracts to avoid confusion over who owns the work. An assignment clause should assign ownership of any work product created by an employee that does not fall under the paid work doctrine to the employer. Overall, an employer’s intellectual property, including work created by employees, can be one of an employer’s most valuable assets and all employers should consider taking steps to better protect their employees. intellectual property rights in the context of the changing COVID landscape.