Intellectual Property 3

I'm a freelance programmer and technical writer. If a company pays me to write a program or manual for them, who owns the copyright on the work I produce?

You generally own the copyright on work you create as an independent contractor (freelancer) unless you sign an agreement assigning the copyright to your client.
This, too, is a change from the way things were done in the past. It is a result of a 1989 Supreme Court decision in a case between Baltimore sculptor James Earl Reid and the Community for Creative Non-Violence (CCNV). Prior to that case, some companies hiring contractors to do work for them assumed they owned the copyright under work-for-hire provisions of the copyright law. In the case between Reid and CCNV, the Supreme Court found that CCNV's commissioning and supervision of Reid were not enough to make him an employee and, therefore, work-for-hire rules did not apply. As a freelancer, he owned the copyright to his work. If you are not the only person working on the program or manual, the work would probably be considered a joint work, and you would co-own the copyright if there were no agreements specifying other arrangements.

What is work for hire?

Work for hire is a term used in copyright law to denote transfer of copyright ownership to an employer, organization, or person other than the individual who created the work. Such transfer leaves the originator of the work with no rights and no future interests in the work. He or she will have no say in how the work is used by the owner and will get no fee or royalty for future use of the work.
Under the U.S. copyright law, a work may be considered a work for hire if it is done by an employee of a company as part of his or her regular employment, or if an independent contractor signs a formal contract giving away rights to certain categories of works such as contribution to collective works, work done as a supplement to work of another author (illustrations for a written text, for instance), translations, compilations of works, tests, or systematic instructional text.

If I hire an ad agency to design ads for me, who owns the designs?

Based on the Reid decision, the ad agency might be able to make a case for owning the copyright on anything it writes or designs for you unless you have an agreement stating otherwise. It would be a good idea, therefore, to have the agency sign an agreement assigning the rights in the work to you.

If I revise a work, what year should I put in the copyright notice?

The year of original publication. Years in which the work was revised may be included, too, but the significant date is the date of first publication.

How long does copyright last?

The copyright on works created on or after January 1, 1978, is in effect for the author's life plus 70 years. If the work is a joint work, the term of copyright extends until 70 years after the death of the last surviving co-owner. Works made for hire have a term of 120 years from creation or 95 years after publication, whichever is less. The copyright duration for anonymous and pseudonymous works is the same as that for works made for hire unless the author's name is revealed in Copyright Office records.

How long does it take the Copyright Office to process registrations?

It can take up to 120 days to get a certificate of registration or, if the application cannot be accepted, a letter explaining why it has been rejected. If you want to be sure the Copyright Office received your registration packet, send it by Priority Mail with delivery confirmation, and you could also enclose a stamped, self-addressed postal card with pertinent information identifying your copyright application.

Do I need an attorney to get a copyright, or can I do it myself?

Registering a copyright is just a matter of filling out some forms and sending the proper fee, so you probably don't need an attorney to register it. However, if you are copyrighting catalogs, advertising materials, programs or other works that were not created by you or one of your regular employees, you have to be sure you own the rights (see above).
If you are copyrighting computer software, you might want to consult an intellectual property attorney to determine if your program has patentable material and about how much of the source code might be considered a trade secret and can be blacked out when the source code is submitted to the copyright office for registration. Be sure to get Copyright Office Circular 61, Copyright Registration for Computer Programs, if you plan to copyright your own software.
Similarly, if the work you are copyrighting contains any kind of trade secrets or could be used in patentable items or processes, you should consult an attorney who specializes in these things.

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