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Understanding “work made for hire” and IP rights

On Behalf of | Jul 3, 2024 | Intellectual Property

Typically, an employee can’t trademark, patent or copyright anything they create for their employer. They can’t profit from this work beyond their compensation from that employer. All intellectual property rights for those ideas, creations or inventions belong to the employer. This is often known as “work made for hire.”

As a business owner, you likely stipulate these things somewhere in your employment contracts. If you bring in independent contractors to work on individual projects or rely on them regularly, you can also include them in their contracts. Whether your employees are creating software or writing advertising copy, this can prevent them from taking their work and selling it to a competitor or anyone else without your permission (at least without consequences).

What if there’s no contractual relationship?

Where business owners sometimes let down their guard is when someone does work for them more informally and there’s no contractual employment relationship. Say a friend was between jobs and agreed to do some photography that you used on your website. Do they have the right to sell those photos to a competitor or copyright them? 

That’s where the “work made for hire” concept isn’t as clear. If you ended up in court with them to prevent them from selling their work to another business and therefore blurring your branding, you’d likely have to provide solid evidence of an employment relationship.

You can see why it’s crucial to have a solid contract with anyone who is going to work for you. That’s particularly true if they’re going to create something that they might want to share (with or without compensation) with others.