How to Own Content Created By Your Independent Contractors
I’m concerned about entrepreneurs, artists, and entertainers who hire independent contractors to create content for their business, without actually securing ownership of the content contributed by the independent contractor.
who owns content created by independent contractors?
You might be wondering, “How could that happen? If you hire an independent contractor to work for you, wouldn’t it make sense for the law to automatically assign to you ownership of all content generated by your independent contractor?”
Yes, but that’s not how US law works.
Under US law, content automatically transfers from employees to employers but not from independent contractors to their clients. Therefore, your independent contractors are presumed to own the content that you hired them to produce, unless they sign an agreement saying otherwise.
how to draft a work made for hire agreement
To rebut the presumption that your independent contractor owns all the content that they create for you, you generally need to have a written agreement with all your independent contractors that contains “work for hire” language similar to Provision 1 below.
Provision 1:
All Work Product that may qualify as "work made for hire" as defined in the Copyright Act of 1976 (17 U.S.C. § 101) will be deemed "work made for hire" for the Client and all copyrights therein will automatically and immediately vest in the Client.
All of your independent contractor arrangements need to not only be documented in written agreements, but also include language similar to the above.
For a second layer of protection, in case the content is not considered “work made for hire” for whatever reason, your independent contractor agreements should also include language similar to Provision 2A below.
Provision 2A:
To the extent that any Work Product does not constitute "work made for hire," the Independent Contractor hereby assigns to the Client its entire right, title, and interest in and to the Work Product.
Provision 2A makes clear that the independent contractor is agreeing to transfer all of its content to you, the client, regardless of whether such intellectual property is considered “work made for hire”.
hiring independent contractors in california
However, if your independent contractor resides in the State of California, do not include the Provision 1 deeming all worker-made content to be “work made for hire”. If you include such a provision in an agreement with a California-based independent contractor, the State of California will consider your independent contractor to be an employee -- and thus you an employer -- for purposes of California labor laws.
To combat this California law without sacrificing ownership of your content, you can and should include a modified version of Provision 2A, such as the language in Provision 2B below, without including Provision 1.
Provision 2B:
The Independent Contractor hereby assigns to the Client its entire right, title, and interest in and to the Work Product.
recommendations
Companies
I recommend that all entrepreneurs, entertainers, and artists check their independent contractor agreements to confirm whether they contain the content provisions in this letter. If you find that provisions are missing or contain critical mistakes, you may need to sign a new agreement with your independent contractor. The new agreement would ensure that all relevant content has been legally assigned to you or your business.
Independent contractors
If you are an independent contractor yourself and you haven’t signed a written agreement with a client, or the written agreement does not contain the provisions in this letter, then you may own some or all of the content that you created for your client. Of course, you should not hold this over a good client, but if a former client is behaving badly, you could use this against them.
Adam Yohanan represents entrepreneurs, investors, freelancers, startups, small businesses, artists, and entertainers in a wide variety of transactional and regulatory matters, with an emphasis on complex commercial contracts, business formations, corporate governance, M&A, finance, intellectual property, and entertainment law. His office can be reached at 212-859-5041.
This guide is meant for educational and informational purposes only and should not be considered legal advice. It is essential to consult with an attorney or other advisors regarding all legal and other important matters.
