Suppose you hire a photographer to shoot photos of your products. You order prints and pay the bill. But the first time you use the photos in a brochure, you get a letter from the photographer's attorney saying you have no right to use the images; you must stop or answer for it in court. What's going on?
"The photographer has the copyright," explains Portland, Oregon, attorney Leonard DuBoff, author of numerous books on copyright law for small business. "The mere fact that your business commissioned them doesn't give you the right to use them." Unless you have a contract with the photographer that gives you the right to publish the photos, doing so might cost extra--and the more often you want to use them, the more it'll cost you.
Or suppose you see a photo you like in a photographer's studio and decide to buy it. What you've bought is that particular print, DuBoff says, which you may display in your office or home. But buying it doesn't give you the right to put the image in your ads, use it as an illustration in your brochure or upload it to your Web site. If you do, the photographer can sue you for copyright infringement.
The same goes for artwork, graphic designs, music, written works and software. The federal Copyright Act of 1976 governs the duplication, distribution, display and performance of creative works. Under this law, the person who creates the work owns the copyright and has legal control over its use unless a signed contract states otherwise. That's good news if your business creates material for use by other businesses. You have the right to decide just what uses of the material you'll allow and to reserve the right to use the material later for your own purposes. But if your business buys or commissions creative works, it could be bad news if you haven't planned ahead.
The major exception is "work for hire," which is created by employees in the course of their employment with you. In cases of work-for-hire, the copyright belongs to the employer unless a contract specifies otherwise. Under limited circumstances, work produced by an independent contractor counts as work-for-hire but only if that's stated in the contract.
Since the writer, photographer or graphic designer you hire is not usually your employee, be sure you bargain upfront for the rights you're buying. Otherwise, you risk never getting to use what you paid for. Sign a written agreement specifying which rights are transferred, such as unlimited rights to publish. Even unlimited rights, however, don't give you the copyright, so the creator could later include the work in a published collection without your permission and keep any profits generated. If you want the copyright, which gives you total ownership, you must get it in the contract.