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Some businesses may already have a person on staff who creates the company's important IP. If this person makes something in the regular course of their employment, that original work is the property of the employer. This is called the work-for-hire rule. In most cases, the right to use a creative work under copyright law belongs to the person who created it. The work-for-hire rule is an exception to copyright law that applies to employees.

Keep in mind, however, that when you hire an independent contractor to develop something unique for your business, the work-for-hire exception does not apply. When working with an independent contractor or freelancer, it may be a good idea to enter into a Copyright Assignment agreement. This agreement transfers the copyright from the independent contractor to you, subject to any exceptions you and your contractor agree to.

Ideally, the agreement transfers the full copyright to you. However, in some circumstances, the contractor may assign only part of the copyright. For example, they may grant use of the work only for a specific period or only in a specific medium. In these situations, you may expect to pay less for fewer rights. For instance, if you want to use the work for a one-time advertising campaign, it may be cheaper to receive a partial assignment for only that limited use.

How can a business tell if something is copyrighted?

If you are designing a short advertising campaign for your business, you may need to use a few photos or graphic designs. You may go online looking for preexisting creative works to use, but you may not be able to use them without getting permission. First, you should check to see whether the works you want to use have copyright restrictions. You or a designated employee can perform a simple review to determine if the work is copyrighted.

  • Check to see if the work carries a Copyright Notice. The notice is printed somewhere on the creative work, such as at the beginning of a book, at the end of an article, or in the corner of a photograph or work of art.
  • Search the online database of copyrighted works. Any work created and registered after 1978 will appear in the database.
  • Contact the U.S. Copyright Office and ask them to conduct a search.
  • Contact the person who created the work.

Not all created works are registered with the Copyright Office, and they do not have to be registered to receive copyright protection. If ownership is not obvious from looking at the creative work or from searching the proper databases, then the person who made the work may be the best resource.

When can a business use copyrighted material without permission?

Most creative works carry copyright protection even if the work is not registered with the U.S. Copyright Office. It may be best to assume a work is copyrighted when you don't know, own the rights, or have an agreement to use it. In general, a business may not use copyrighted material without permission from the owner. Sometimes getting permission is as easy as checking a box on a website, while other times it may require actually reaching out to the owner to ask.

In copyright law, the Fair Use Doctrine offers an affirmative defense against accusations of violating the owner's copyright when it is used in another creative work without permission. Generally, if the use is commercial in nature, this defense won't succeed, but there are exceptions.

If you find that another business or person is using your copyrighted work without permission, you can take action to stop them. The first step is to send a Cease and Desist Letter. The letter will inform the person of your copyright and ask them to stop violating your rights.

How can a business get permission to use copyrighted material?

The process of getting permission to use the material can be as simple as contacting the copyright owner. From there, you can discuss your reasons for requesting its use. Your purpose is likely to be commercial in nature, so you can expect to pay for the privilege of using the material. You will enter into a Copyright License Agreement with the copyright owner in which the owner gives you permission to use their work in exchange for money. The agreement will describe the royalties the copyright owner will receive (and you will pay), the length of the license, and other important details.

The importance of IP in today's business environment can't be overstated. If you have legal questions, reach out to a Rocket Lawyer On Call® attorney. They can help guide you through any copyright issues and protect your company's IP, reputation, and bottom line.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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