Who Owns This Blog Post?

May 1, 2015

iStock_000035585824_SmallAs a lawyer who blogs who is interested in the law as it pertains to bloggers, answering this question seems like a good place to start for a series of posts on Internet Law. The answer to the above question, as you might imagine, depends on the facts and circumstances of each individual case.

In order to determine who owns a blog post or other work of authorship, copyright and contract law are typically implicated. Copyright law protects a writing from the time it is created in a fixed form, such as written on a page or in an electronic document. Only the author of the work or a subsequent transferee who obtains rights from the author can claim copyright, with one exception – “works made for hire”.

Section 101 of the federal Copyright Act defines a “work made for hire” as follows:

  1. a work prepared by an employee within the scope of his or her employment; or
  2. a work specially ordered or commissioned for use and if the parties expressly agree in a written document signed by them that the work shall be considered a work for hire:
    1. as a contribution to a collective work,
    2. as a part of a motion picture or other audiovisual work,
    3. as a translation,
    4. as a supplementary work,
    5. as a compilation,
    6. as an instructional text,
    7. as a test,
    8. as answer material for a test, or
    9. as an atlas

It is important to note that the term ‘employee’ in the work made for hire context is broader than the commonly used definition of the word, since the term “employee” for copyright purposes means an employee under the common law concept of agency. The primary factors that define what constitutes an employer-employee relationship for copyright purposes are generally (1) the amount of control by the employer over the work, (2) the amount of control by employer over the employee, and (3) the status and conduct of the employer.

In the case of an independent contractor relationship, work made for hire is a fairly limited concept. In order for a work created by an independent contractor to constitute a work made for hire, the work must fall within one of the nine categories set forth above, and there must be a written agreement between the parties specifying that the work is a work made for hire. Therefore, if you are a business using independent contractors to create copyrightable works, it is important to have a contract either outlining the work made for hire relationship, or to provide for assignment of the copyright at some point in the future.

In this case, I am employed by Russell, Krafft & Gruber LLP. This blog post was prepared by me during work hours, using my employer’s computer and resources, and is posted on a blog that is owned by the firm. Further, as a part of my employment, in addition to providing legal services, I am expected to educate myself on various areas of law and provide additional value to clients, referral sources and prospective clients who read our blog.  Researching and writing blog posts like this one helps me accomplish that.

Therefore, it is likely that the copyright and ownership of this blog post would be held by Russell, Krafft & Gruber, LLP, unless we had a written agreement to the contrary.

If you are unsure of the ownership of a written work it is advisable to consult with an attorney who is familiar with copyright laws and will make sure the proper circumstances or agreements are in place to ensure your interests are protected.  Dealing with this issue upfront can save a lot of time and money in the event a dispute arises.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and works regularly with business owners and entrepreneurs.