There is a big difference between a "work made for hire" and a "copyright assignment." As discussed in this article, a work made for hire only deals with 2 situations, including with (i) employees and (ii) independent contractors. And generally, the work made for hire agreement should be created prior to any work being done. Otherwise, there’s a chance that the work made for hire agreement may not be valid, depending on the situation. Let’s go over an example to illustrate this concept.

If you as the employer contract with an independent contractor to design a website for your company, and the independent contractor begins prior to signing any written agreement with you there’s a chance that a work made for hire agreement would not grant you all the copyrighted work. That’s because a work made for hire written agreement must meet the 3 elements of a contract, including (i) an offer, (ii) acceptance and (iii) consideration. The third element, consideration, means that there must be something given in exchange for the work – which is usually money! Additionally, under contract law, consideration must be for work to be completed, i.e. not past work.

So, if an independent contractor creates your logos, website design, and other company materials, and then you try to have him or her sign a work made for hire agreement, you’ll likely be too late. What do you do in this situation? Well, it’s often a good idea to have the independent contractor assign the work to you, as the employer.

An assignment is also a contract, so it must meet the formal requirements of a contract, including consideration. But an assignment is generally a good way for an employer to obtain copyright ownership in a work that has already been created by an independent contractor. You’ll also want to have certain provisions in the assignment, such as warrants, indemnification, and other clauses to fully protect your interests. You may want to consult an attorney for an assignment so you properly draft the assignment. Otherwise, you could again be faced with the prospect of not owning the full copyrights to the work.

We’ll wrap up this article with some final thoughts to keep in mind.