Own Your Work!
Article Description. Should include author, brief description, issue number and page number(s).
 Caricature by: ?? | |
| Author | Meaghan H. Kent |
|---|---|
| Subject | Article, Business, Legal |
| Published | EF Issue 2019.2 |
Publication date | Spring 2019 |
| Media type | Digital |
| Pages | 28 |
| Website | caricature |
| Meaghan Kent is a partner in the Washington, D.C. office of Venable LLP. She advises clients on all areas of intellectual property law, including copyright, trademark, patent, trade secret, right of publicity, and domain name law. She can be reached at 202-344-4481 and mhkent@venable.com. The views expressed in this article are those of the author, do not constitute legal advice, and should not be attributed to Venable LLP or its clients. | |
Article Transcript
As caricaturists, you create original works every day, and those original works are covered by copyright. Copyright exists in your original work as soon as the work is “fixed,” i.e., put into a tangible medium of expression, such as pen on paper. The owner of that copyright then has the control over who may reproduce, display, distribute copies of, and make derivatives of that work. But who owns the copyright?
Generally speaking, the “author” or creator of a copyrighted work owns the copyright. However, if you are creating these works as an employee in the scope of your employment, your employer is considered the “author” and automatically owns the work. Note that even if you created the work on your own time and with your own resources, your employer may still own the copyright in that work if the type of work is considered within the scope of your duties as an employee. Take a look at your employment agreement or other paperwork that describes your duties as an employee.
If you create the work as an independent contractor, such as on commission, it gets more complicated. If you were commissioned to create the work, you may or may not own the copyright in the work, depending on the type of work, whether there was a written agreement, and the terms of any written agreement. If there was no written agreement, you are the author and own the copyright in the work. If there was a written agreement that said you “assigned” the copyright in the work, then you are the author but you have transferred ownership of the copyright to the party that commissioned the work and they now own the work. If there was a written agreement that said the work was a “work for hire,” the party that commissioned the work is considered the author and owner only if (1) both you and the party commissioning the work signed the agreement, and (2) the type of work commissioned is listed in the categories of “work for hire” in the Copyright Statute. The categories do not include artwork as a category, but they do include works specially ordered or commissioned for use as a contribution to a collective work or as a part of a motion picture or other audiovisual work. Take a good look at any written agreements to determine who owns the copyright in the work. Work for hire is a particularly complicated area where many mistakes are made between artists and those who commission those artists, so it is best to have an attorney review agreements or provide you with standard language to use whenever possible.
Importantly, you should remember that the ownership of a copyright is separate and distinct from the ownership of the material object in which the copyrighted work is embodied. In other words, transfer of the physical embodiment of the work (i.e., the caricature itself) does not transfer the copyright in the work. That means that you still own the copyright in your work even when someone pays you to create a caricature of them and they purchase the resulting caricature, and they may not make copies of that image (including electronic copies) without your permission.
Questions have arisen recently with recent state employment law decisions, such as in California where the California Supreme Court (Dynamex Operations West, Inc. v. Superior Court of Los Angeles) in April created a different standard for determining whether a worker is an employee or an independent contractor for purposes of wage orders adopted by California’s Industrial Welfare Commission. It replaced a complicated multi-factor test with a three-part test that appears to presume workers are employees instead of contractors. While the intent appears to be to protect workers, what does this mean for copyright ownership? Very little, I suspect. Courts have not yet weighed in on this specifically since the California decision, but back in 1989, the U.S. Supreme Court (CCNV v. Reid) held that when determining whether a worker is an employee or an independent contractor for copyright ownership purposes, the Copyright Act is expressly intended to create a federal law of uniform, nationwide application and thus the law of any particular state should not be relied upon. Instead, for copyright purposes, courts should look to the “common law of agency,” which the U.S. Supreme Court explained includes consideration of numerous factors, including: “the hiring party’s right to control the manner and means by which the product is accomplished; the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.”
To sum it up, the California (and other state) revisions to employee definitions for employment law purposes should not immediately affect copyright ownership. We will keep you posted, though, on any further changes.
Meaghan Kent is a partner in the Washington, D.C. office of Venable LLP. She advises clients on all areas of intellectual property law, including copyright, trademark, patent, trade secret, right of publicity, and domain name law. She can be reached at 202-344-4481 and mhkent@venable.com. The views expressed in this article are those of the author, do not constitute legal advice, and should not be attributed to Venable LLP or its clients.
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