You may work with other content creators to create works protected by copyright, such as working with a graphic designer to create subscriber emotes or onscreen overlays. Because you are working with other artists, it is important that the details of the ownership of the works that other artists create and how such works will be used are determined in the form of a mutually agreed upon contract before the work starts. Even if specific artists have worked together before, things can change for a specific project: each collaborative work has its own set of circumstances which can lead to different terms and arrangements. For example, their attitudes concerning the collaborative work may change due to any number of reasons, and the market both creators desire to share for that collaborative work today may not exist tomorrow. You may work with other artists in a variety of ways, such as hiring independent contractors/freelancers, employing people or working together as a joint collaboration.
Independent Contractor, Freelancer, Consultant
As an independent contractor, freelancer, or consultant, the author by default owns everything copyrightable that they create, and perhaps co-own the combined product of their work and others’ work, unless (1) the author and the client signed a “work for hire” agreement, and (2) the author’s contribution falls into one of the following categories:
- a contribution to a collective work (e.g., magazine, anthology, or encyclopedia)
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work (e.g., foreword, afterword, bibliography, appendix, index, or editorial notes)
- a compilation (e.g., anthology, database, or anything that qualifies as a “collective work”)
- an instructional text (generally, any text that could go in a textbook)
- a test
- answer material for a test
- an atlas
If the non-employment work doesn’t belong to at least one of the categories above, it is not a “work made for hire” regardless of what the contract says. Where both parties want the copyright to belong to the client, it is best for the author to state in the contract that they assign the client all right, title and interest in the work.
For works that fall within the defined categories, the hiring party must have a written agreement from the author expressly stating that the work is made for hire for it to qualify as such. Retroactive work for hire is not permitted.
In the event that you have employee(s) that are creating works for you, then as an employee, the copyright to any work produced in the course of employment belongs to the employer. No written agreement is required for the creative work of a regular employee to be deemed a work for hire in which the employer owns the copyright.
Much of the time, it is clear-cut whether the author is an employee. In instances where it isn’t, or where employment status is in dispute, the courts may apply a number of factors to determine whether the author is an employee who created the work within the scope of their employment.
Those factors include:
- whether employee benefits are provided to the author;
- whether the hiring party controls the manner and means of the author’s work;
- whether a specialized skill by the author is required;
- whether the work is performed on the employer’s premises using its equipment;
- the duration of the relationship;
- whether the employer can assign additional projects;
- the extent of the author’s discretion over when and how long he works;
- whether the author hires and pays their own assistants;
- and whether the work is part of the employer’s business.
Copyright Ownership in Collaborations
It’s important to know that copyright works a bit differently when it comes to joint projects. Joint copyright ownership is established once the collaborative work begins, and unless you decide otherwise, and capture it in writing, the law will assume both creators own the copyright to the finished product: neither creator owns their contribution but that both own the result of the contribution.
Joint projects also have these defaults when it comes to copyright:
- All creators can use the work however they want, including signing all the non-exclusive licenses without having to ask for the other creator’s permission.
- For any creator to sign an exclusive license, all creators must agree.
- For any creator to transfer their entire ownership interest in the work to another person, all creators must agree.
- Creators split all funds from the project equally. This applies even if one creator fronted the funds for the project to be able to happen in the first place.
- The joint copyright lasts for the life of the longest living creator plus an additional 70 years, at which point the creators’ heirs will be responsible for managing the copyright.
If these defaults do not align with the intentions of everyone intending to collaborate on a project, a collaboration agreement should spell out the actual intentions.
A collaboration agreement is a way to establish the ground rules for the collaborative work: it can help protect business arrangements, friendships, and future projects. When it is in place, the collaborators can freely proceed creatively, knowing that if there is a disagreement, the collaboration agreement is in place to reconcile differences.