Here’s a common scenario: you’ve spent months developing your product. It’s finally done and you need product photos for your website, social media, and print media. You hire an outside photographer, who probably costs more than you wanted to spend. The photographer does a great job, and turns over digital files. You think the photos are yours – including copyrights – because, after all, you paid the photographer for the photographs which now sit on your computer drive. Wrong! The photographer owns the copyrights unless you have a written agreement stating that you own them.
Is copyright ownership a big deal? It could be. You need to own — or at least have an exclusive license in — the copyrights if you want to freely copy, distribute, or create derivative works and prevent others from doing so, including the photographer. You’ll also need ownership rights if you want to register the copyright with the U.S. Copyright Office and/or sue any infringers. Below is a roadmap for how to get what you need from your photographer (or any independent contractor).
Why Copyright Ownership Matters in Independent Contractor Agreements
Copyright ownership is a big deal when you’re contracting with independent contractors like photographers, graphic designers, or writers. Without ownership or an exclusive license, you can’t freely copy, distribute, or modify the work. Ownership is also essential for registering the copyright and taking legal action against infringement.
Here’s how you can secure your copyrights when working with independent contractors.
Understanding Copyright Law and Ownership
Under U.S. copyright law, the “author” of a work automatically owns its copyright. For instance, if you contract with a photographer to create product photos, the photographer owns those photos unless there’s a written agreement stating otherwise.
The Work Made for Hire Exception
One way to ensure copyright ownership when contracting with independent contractors is through the “work made for hire” doctrine. This applies in two scenarios:
- Employment Relationship: When an employee creates work within the scope of their job, the employer automatically owns the copyright. For example, if your in-house marketing team captures product images, you own the copyrights.
- Commissioned Work: For work created by independent contractors, a written agreement must explicitly state the work is “made for hire.” Additionally, the work must fall into one of nine categories outlined by the Copyright Act, such as a contribution to a collective work or supplementary material.
Sample Work Made for Hire Clause
Here’s a sample clause you can use when contracting with independent contractors:
“The Work contributed by the Contractor shall be considered ‘work made for hire’ as defined by the United States Copyright Act (17 U.S.C. § 101). The Company shall own all rights, titles, and interests in the Work, including copyrights.”
Assignment Agreements: Another Route to Ownership
If the work doesn’t qualify as “made for hire,” you can still secure copyrights through an assignment agreement. This is a permanent transfer of ownership rights from the independent contractor to your business. Here’s a key point to remember: under U.S. copyright law, assignments must be in writing to be valid.
Sample Assignment Clause
“The Contractor hereby irrevocably assigns to the Company all rights, titles, and interests in the Work, including copyrights.”
Assignments provide full control over the work, but they may include reversion rights, allowing the original creator to reclaim ownership after 35 years under specific conditions.
Exclusive Licenses as an Alternative
If a photographer or independent contractor refuses to assign their copyrights, you can negotiate an exclusive license. This allows your business to use the work as needed while preventing others, including the contractor, from exploiting it. Most exclusive licenses permit the contractor to showcase the work in their portfolio for marketing purposes.
Sample Exclusive License Clause
“The Photographer grants the Company an exclusive, perpetual, royalty-free license to use, modify, and distribute the Work for all purposes.”
Special Considerations in California
When contracting with independent contractors in California, be cautious about using “work made for hire” clauses. State law may classify the contractor as an employee, triggering obligations like benefits and worker’s compensation. To avoid this, consider relying on assignment agreements or contracting with companies rather than individuals.
What to Do Without Pre-Existing Agreements
If you’ve already worked with a contractor but didn’t secure copyright ownership, you have options:
- Negotiate a retroactive assignment or exclusive license agreement.
- Offer additional compensation to incentivize the contractor.
- Rely on the implied, non-exclusive license that allows you to use the work (but doesn’t grant ownership).
Key Takeaways for Contracting with Independent Contractors
When contracting with photographers and other independent contractors, protect your business by securing ownership or licensing rights to their work. Always include clear, written agreements tailored to your situation. Whether through “work for hire” clauses, assignment agreements, or exclusive licenses, these contracts ensure you retain control and avoid legal complications down the road.
This article is for informational purposes only and should not be considered legal advice. Consult an experienced attorney for guidance specific to your business needs.
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