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Aardvark Company hires a photographer to take a picture of one of its employees in an aardvark costume to be used on the cover of its annual report. Aardvark chooses the costume, picks the setting, poses the employee and does everything else to set the content of the photograph. The photographer does little more than snap the shutter on the camera. Aardvark also pays for all the film and other materials the photographer uses and pays the photographer a day rate, and when the shoot is done the photographer delivers all negatives to Aardvark. Aardvark uses one of the photographs on the cover of its annual report and the photograph is a big hit. So Aardvark wants to launch an entire advertising campaign around the photographs, including ads in magazines, billboards, direct mail pieces and more. Aardvark can do this, right? WRONG!

Why not? Because under the federal Copyright Act the photographer owns the copyrights in the photographs and thus controls how they may be used. Copyright law is slanted in favor of the .creator. of the work and vests him or her with the copyright. Copyright ownership stays with the creator of the work unless the creator assigns the copyright in writing to someone else. If Aardvark has nothing in writing and has only told the photographer that the photographs were to be used on the cover of the annual report, then Aardvark probably only has an oral or implied license to use the photographs for that purpose. If Aardvark wants to use the photographs in its advertising campaign, it must obtain from the photographer a written assignment of ownership of the copyrights in the photographs or a license to use the photographs in the advertising campaign. If Aardvark uses the photographs in the advertising campaign, without obtaining either an assignment or a license, then it has infringed the photographer.s copyrights and may be liable for substantial damages.

There are only two exceptions to the rule that the creator of a work owns the copyright in it. First, if an employee (as opposed to an independent contractor) creates a work within the scope of his or her employment, then the employer, not the employee, owns the copyright in the work. This is known as a .work for hire.. A key factor to remember is that creating the work must fall within the employee.s normal job responsibilities. In our example, if Jack the Janitor at Aardvark is an amateur photographer and Aardvark asks him to take the photographs, Jack will still own the copyrights in the photographs because taking photographs is not part of his normal job at Aardvark.

The second exception to the rule that the creator owns the copyright applies when an independent contractor agrees, in writing, before the work is created, that the work will be a .work for hire. owned by the hiring party. However, this prior designation of an independent contractor.s work as a work for hire can only be done when the work falls into one of the following nine categories: (1) contributions to a collective work; (2) parts of a motion picture or other audio visual work; (3) translations; (4) supplementary works; (5) compilations; (6) instructional texts; (7) tests; (8) answer material for a test; or (9) atlases.

So what.s a business to do? Before hiring an independent contractor to create a work covered by copyright (such as photographs, software, graphic arts, ad copy, etc.), a business should consider carefully all future uses it may want to make of the work and negotiate with the contractor for either an assignment of the entire copyright or at least a license to make such future uses. Failure to do so could be very costly later.

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