copyright

[Ned]

My wife is also a tax accountant. During tax season, she worked as a contract writer for our local newspaper, writing a tax column with filing tips and answering subscriber tax questions. She was paid via a 1099. She never signed a contract. There was never anything discussed concerning the copyright issues. Now she is writing for a newspaper in the city that is about a 100 miles from our home. She works out of our house in her home office and emails her columns to her editor. She wants to use some of her stuff she had previously written, but her former employer is threatening a lawsuit.

I know this isn’t exactly tax related, but I thought I read someplace that independent contractors own the copyright on the material they produce unless they sign a contract waiving their right to the copyright.

Has anyone heard of this?

[Brad Imsdahl]

Your wife still owns the copyright to her work

Info from this web site:

http://www.nolo.com/article.cfm/ObjectID/4E3C9751-CE3F-40E2-869381320F438820/catID/561FF7A5-12CD-4059-8EA7DE4254733BE3/111/259/173/FAQ/

“Who owns intellectual property created by independent contractors?”

“When you hire an IC to create a work of authorship such as a computer program, written work, artwork, musical work, photographs, or multimedia work, you need to be concerned about copyright ownership.”

“The copyright laws contain a major trap for unwary hiring companies. The hiring company will not own the copyright to the IC's work unless it obtains a written assignment of copyright ownership. An assignment is simply a transfer of copyright ownership. You should obtain an assignment before the IC starts work. This assignment should be included in the IC agreement.”

“There are exceptions to this rule. Certain specially commissioned works by ICs are considered to be works for hire, to which the hiring company owns the copyright. However, this rule is not automatic -- you still have to enter into a written agreement explicitly stating that the work is for hire.”

It should be noted that employees who create intellectual property while working for an employer do NOT own the copyright to their work. Employers automatically own the copyright to work produced by their employees through the employment agreements they have signed with their employees.

The issue can get cloudy when you start off as an IC, and later get hired as an employee. Does your work prior to being hired as an employee automatically transfer to the employer? I don’t believe that would be true, unless the employment agreement specifically addressed all previous work the employee produced while being paid as an independent contractor. Bottom line is an employer really needs to make sure everything is spelled out in writing. Otherwise when people quit and go to work for the competition, the employer might not really own the work they paid for.

[Unregistered]

This link is to a court case where the independent contractor retained his copyright to a work of art because he was not an employee of the one who hired him to do the work at the time.

http://www.oyez.org/oyez/resource/case/1123/

[Patty]

I wonder if that would have anything to do with who owns the tax client? We had a situation where the owner of the tax firm didn't want to pay us tax preparers as employees. We were treated as independent contractors. Does that mean we own the rights to our clients and can go off on our own and solicit our clients to go with us?

[jainen]

peace of mind

It's an idle threat. They aren't going to let her new publisher write embarassing things that will jeopardize all their independent sources. If she wants to have fun she could file a labor complaint over her non-employee status, based on their own copyright position. For peace of mind just stay clear of it all. Rewrite the general tips and don't use anything derived from the newspaper's subscribers.

[Bees Knees]

We were treated as independent contractors. Does that mean we own the rights to our clients and can go off on our own and solicit our clients to go with us?

The rights to your clients have nothing to do with copyright laws. I'm not an attorney, but I know you can't compare apples to oranges. Any right to solicit or not solicit your clients when you go off on your own would be determined under non-compete type contracts you may or may not have signed. When the owner of the firm hired you to prepare tax returns, was there any kind of written agreement stating you didn't have the right to compete or you couldn't take your clients with you if you left?