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Who Owns Your Work?
Greg Cannon writes for www.ework.com – a Ms.Money partner.
If you're going to work on your own, you need to know who's going to own your work. From software development and Web design, to writing and photography, the business of the information age—the prime stomping ground of independent professionals—is also the business of copyright and patent issues.
If you're a recent refugee from the workaday world, you probably haven't given much thought to questions of intellectual property. Work done as an employee belongs to the employer. It's that simple. But as an independent, you own your work—until, that is, you start signing away rights. So if you want to make the most of your endeavors as an independent, you might want to give these matters some serious thought.
The first step is determining which legal tools apply. Copyright and patent,
the principal legal devices in such cases, cover different
kinds of intellectual property. Though, under certain circumstances,
the two may overlap and apply to the same work.
Copyright provides control for use of creative works including software, writings, graphic arts, music, photography, and video, among others. He who owns the copyright decides how and when a work can be used or sold. Patents, for the most part, traditionally apply to things that have a tangible, demonstrable, real-world use. However, Internet technology is steadily stretching this definition, such as Amazon.com successfully patenting their "one-click technology."
In either case, the next question is how much control you'll be able to retain over the work. "The most significant thing [besides payment] is, who is going to own what you create," says Stephen Fishman, a lawyer specializing in intellectual property who has written several books on the topic. Most clients will want you to sign a contract before any work begins. And since they're footing the bill, chances are they'll want you to surrender some or all copyrights. But there is still the question of degree.
Since a copyright is actually a package of rights—to copy, distribute, display, license, and otherwise use a work—there is some room to negotiate. You can sign away some rights and retain others. You can further divide rights by geography, time, or just about any other means to which you and your client agree.
The reality is, however, that more and more companies want their contractors to sign work-for-hire agreements giving them complete and permanent rights to the work. "If you don't sign it, they won't hire you," Fishman says. "As talented and desirable as you may be, few companies are willing to budge much since doing so makes things more murky for them."
This is not to say you shouldn't try to negotiate, however, particularly when it comes to boilerplate contracts. Many independents report that these contracts make demands that don't even apply to their particular circumstance, and add that clients will yield on these points when brought to their attention.
You may also find that some clients don't even provide a contract. And while in the absence of a contract you keep all rights to your work, it's best to cover your bases by drawing up your own. Some of the following sources offer advice on writing your own contracts, and even provide samples. Fishman, for example, is the author of Consultant & Independent Contractor Agreements (Nolo.com, 1997), which offers general contracts for use by independents and hiring managers alike, tailored to consulting, software, accounting, sales, and creative services, among others.
There is nothing wrong with entering into a mutually beneficial agreement in which your work becomes the sole or partial property of your employer—provided you are fully aware of the ramifications, and have weighed your options carefully. But, as a matter of practice, it is highly recommended that you seek the advice of an attorney before signing on the dotted line.
Legal Resources For Contractors
Before you sign a contract or start working, know what you're giving away and what you're holding on to. The following web sites are a good place to start:
FreePatentsOnline.com - free patent searching site
http://www.nolo.com/ offers a broad range of self-help law centers that include a legal dictionary, encyclopedia, case law, and calculators. You can also shop Nolo.com's extensive collection of do-it-yourself law books and downloads.
http://www.patents.ibm.com/ allows you to search, view, and analyze patent documents.
http://www.uspto.gov/, homepage of the United States Patent and Trademark Office, provides news and resources on patents, including a searchable database.
www.lcweb.loc.gov/copyright/, homepage of the United States Copyright Office, provides just about everything you need to know about copyright—including news, law, records, publications, and registration information.
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