Who Really Owns “Your” Creative Works?

A homebuilder retains a drafting company to prepare architectural drawings for a new home, and pays the company for its services. A few years later the builder discovers that someone has built a house using stolen copies of its plans.  

A radio station’s advertising agency creates a new campaign for the station that features a distinctive musical jingle. The agency sells the same jingle to another radio station in a different market.

A software company comes up with an idea for a computer program to automate golf course operations. The company hires ten freelance programmers to write the code for the program, which the company markets in association with the trademark iGreen. On the basis of the success of the iGreen program, the company receives a purchase offer from a large conglomerate.

The owner of an online retail store pays a friend’s teenage daughter to design a website with unique animation features. The teen disables the program running the site and refuses to unlock it unless she’s paid an additional amount.

Results in each case? None of the companies that paid for these works actually owns what they thought they owned. For that reason, they will have problems if they try to enforce or transfer the rights they thought they owned.

Caution - we’ve now entered the danger zone known as the world of Intellectual Property.

So why don’t these companies own the works they paid for? All of the products noted above - the architectural drawings, the radio jingle and the software programs – are original works of authorship that qualify for protection under the United States Copyright Act. According to the statutes, a “copyright right” is certified within each of these works as soon as the work is fixed in a tangible form, whether or not the work has been registered in the United States Copyright Office. However, unlike works created by employees within the normal scope of their duties (so-called “works made for hire”), the copyright in each of these works described above is owned by its creator, all of whom would be characterized as independent contractors.   

For this reason, all parties who commission copyrightable materials from independent contractors should always obtain a written undertaking of the copyright rights from the creator. An oral agreement is not enough. Without such an agreement and a written transfer of rights, the company may have a limited right to use the work it paid for… but may also have an unpleasant surprise waiting, when it receives a demand letter from the attorney of the copyright owner. 

Hiring the right intellectual property lawyer can help you achieve your intellectual property goals and ensure that your company has the protection it needs. Concentrating in intellectual property and related litigation, Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A. has been named by the trade journal Intellectual Property Today as being among the Top 100 Law Firms in the U.S. for obtaining patents and trademark registrations. 

We would welcome the opportunity to help you protect, enforce and defend your U.S. and international intellectual property rights. ADDMG has twenty-seven attorneys in six offices in Orlando, Jacksonville, Miami, Tampa, Melbourne and Winter Springs. 

Intellectual Property article, appearing in Forward Florida Magazine

Articles and editorials can be a robust part of a company’s online and print presence,
yet executives rarely have the time to research and write such features. 
That’s where I can help!