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Ok, wait. I am somewhat confused by this article. It is from my (non-lawyer) understanding that intellectual property ownership generally default to the creator

Ok, wait. I am somewhat confused by this article. It is from my (non-lawyer) understanding that intellectual property ownership generally default to the creator. This happens even in "independent contractor" type of relationships, from my understanding. In the case of an employee/employer relationship, on the other hand, IP generally lies on the employer. So if it's a work-for-hire relationship, IP automatically goes to the potential employer?

dagss 10y ago
At least in my country the IP goes to the author, full stop. In employment contracts you then specifically transfer the IP to the employer.
- joshuak 10y ago
  Though I'm not a lawyer, I have direct experience with this having successfully sued a client over IP related issues. Under California law all IP produced by an employee during their employment, that is within the domain of the employer's work product and regardless of where that work was produced, is by default owned by the employer. All IP produced by a independent contractor is owned by the independent contractor, you pay for their time not for their work product. 'Work for hire' clauses are used to simply and effectively move an independent contractor into the same category as employee with respects to the IP they produce. It does not do the same with respect to the independent contractor's compensation, or rights as employees. Generally the 'work for hire' clause itself is entirely inflexible, it is other areas of the agreement that must be addressed to protect payment. Hollywood, for example, is run almost entirely under work for hire agreements and could not function without it.
  - DannyBee 10y ago
    " that is within the domain of the employer's work product and regardless of where that work was produced, is by default owned by the employer." It's broader than that, actually.
briandear 10y ago
That is correct. When I was a photojournalist, I avoided work for hire when possible because it resulted in all of my outakes belonging to the publication. I did do work for hire when I did inconsequential stuff like specialized industrial shoots, but all my news stuff was explicitly not work for hire. The result was I retained rights for my outtakes (which at the end of the 1990s resulted in significant stock income from NBA, the 1996 presidential campaign and other big value news and celebrity stuff.) I actually paid for most of my university with just stock residuals. My general agreement with Reuters was I got paid a day rate plus expenses and they had the rights to the specific images I delivered. (For a typical NBA game, I might ship at most two images for the night.) Just for clarity, since Reuters is a fast-moving wire service, they don't want fifty images, it was left to the photographer to ship only a 'best' image so as not to clog the picture desk in DC with a massive stream of noise (imagine 20 NBA games in one night with 100 images each -- it makes editing on deadline a massive task, so the photographers were expected to only deliver what was actually needed.) Things might have changed a bit; my last Reuters assignment was in 2002. So, at least in photography, work for hire can be very expensive due to effectively having zero IP at the end of the job.
DannyBee 10y ago
"So if it's a work-for-hire relationship, IP automatically goes to the potential employer? " Yes.
zekevermillion 10y ago
Different rights behave differently. Work-for-hire doctrine pertains to copyright only. An employee who produces "work-for-hire" never owns the copyrights to his creative work. Whereas with patentable inventions, all inventors must be named on any application for an invention, and any inventor who has not assigned her rights in writing will generally retain them, even if she was an employee of the applicant.

dagss 10y ago

At least in my country the IP goes to the author, full stop. In employment contracts you then specifically transfer the IP to the employer.

joshuak 10y ago
Though I'm not a lawyer, I have direct experience with this having successfully sued a client over IP related issues. Under California law all IP produced by an employee during their employment, that is within the domain of the employer's work product and regardless of where that work was produced, is by default owned by the employer. All IP produced by a independent contractor is owned by the independent contractor, you pay for their time not for their work product. 'Work for hire' clauses are used to simply and effectively move an independent contractor into the same category as employee with respects to the IP they produce. It does not do the same with respect to the independent contractor's compensation, or rights as employees. Generally the 'work for hire' clause itself is entirely inflexible, it is other areas of the agreement that must be addressed to protect payment. Hollywood, for example, is run almost entirely under work for hire agreements and could not function without it.
- DannyBee 10y ago
  " that is within the domain of the employer's work product and regardless of where that work was produced, is by default owned by the employer." It's broader than that, actually.

briandear 10y ago

That is correct. When I was a photojournalist, I avoided work for hire when possible because it resulted in all of my outakes belonging to the publication. I did do work for hire when I did inconsequential stuff like specialized industrial shoots, but all my news stuff was explicitly not work for hire. The result was I retained rights for my outtakes (which at the end of the 1990s resulted in significant stock income from NBA, the 1996 presidential campaign and other big value news and celebrity stuff.) I actually paid for most of my university with just stock residuals. My general agreement with Reuters was I got paid a day rate plus expenses and they had the rights to the specific images I delivered. (For a typical NBA game, I might ship at most two images for the night.) Just for clarity, since Reuters is a fast-moving wire service, they don't want fifty images, it was left to the photographer to ship only a 'best' image so as not to clog the picture desk in DC with a massive stream of noise (imagine 20 NBA games in one night with 100 images each -- it makes editing on deadline a massive task, so the photographers were expected to only deliver what was actually needed.) Things might have changed a bit; my last Reuters assignment was in 2002. So, at least in photography, work for hire can be very expensive due to effectively having zero IP at the end of the job.

DannyBee 10y ago

"So if it's a work-for-hire relationship, IP automatically goes to the potential employer? " Yes.

zekevermillion 10y ago

Different rights behave differently. Work-for-hire doctrine pertains to copyright only. An employee who produces "work-for-hire" never owns the copyrights to his creative work. Whereas with patentable inventions, all inventors must be named on any application for an invention, and any inventor who has not assigned her rights in writing will generally retain them, even if she was an employee of the applicant.