Labor and Employment

Who Owns Employee and Independent Contractor Work Product?

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Ownership of your work depends on whether you are an employee or an independent contractor.

"Work product" is anything you complete for a person or business that has hired you. It might include a book you wrote, an app you designed, photos you took, or an innovation you dreamt up. Whether you or the hiring firm owns that work depends on whether you work as an employee or an independent contractor, the type of work you do, and whether you have an employment or contractor agreement setting out the rules for work you create.

Are You an Employee or Independent Contractor?

Generally, employees have very few (if any) rights to work they create on their employer’s dime. You are an employee if your employer has the right to dictate and control how you do your work, including the time, place, and methods by which you do your job. An independent contractor, by comparison, is in business for him- or herself, who is not managed or directed by the hiring firm, often works on a project basis, and determines the hours, location, and means of completing the job independently. To learn more on these classifications, see Am I an Independent Contractor Under Federal Wage and Hour Laws?. Also, check out the IRS website for federal rules on the distinction between independent contractors and employees

If You Are an Employee

If you are an employee, the general rule is that all of the work you do on the job – and the rights to that work, such as copyright, the right to license or sell it, and so on -- belong to your employer. Even if you invent or design something that makes your employer lots of money, you are not entitled to a share of that profit. Your paycheck is intended to cover the work you are paid to do, including your creative work and innovations. This rule applies to all work that falls within your job description, created at least in part for your employer, using your employer’s facilities, and so on.

There are some legal grey areas as to work you create on your own time, using your own resources. If your creation relates to the work for which you are paid, your employer may argue that it owns that work. If you have an employment agreement, find out whether it addresses ownership of employee work. A lawyer can help you figure out whether you have an argument that you should own something you created.

If You Are an Independent Contractor

Independent contractors, in contrast, don’t automatically give up their ownership rights to work they create. If your work is creative and subject to copyright, you will own that copyright unless you have agreed otherwise in writing. The rules here depend on whether you have created a “work for hire.”

Works for Hire

There are nine types of works for hire. If you create one of these things as an independent contractor, it will belong to the firm that hired you to create it if you have entered into a written agreement to that effect. If you don’t have a written agreement, you will own the work. However, many hiring firms will insist that you sign a work-for-hire agreement, to make sure they get what they pay for. Works for hire include:

  • compilations
  • instructional texts
  • tests
  • answer keys for tests
  • atlases
  • supplementary works, such as bibliographies or appendices
  • translations
  • contributions to compilations (such as anthologies), and
  • parts of audiovisual works.

Other Work Product

If you are hired as an independent contractor to create something that doesn’t fit within a work-for-hire category, you will retain the copyright unless you sign a written agreement assigning some or all of your rights over to the hiring firm. You might decide to sign over your copyright entirely. Or, you might decide to give the hiring firm a license to use the work in some way, retaining your right to use it as well. You might, for example, agree that the hiring firm can use your photographs exclusively for three years, after which you may license the photographs to others. Or, you might give a nonexclusive license to use your invention to the hiring firm, while you retain the right to license it to other companies at the same time. Your rights in this situation depend on your written agreement with the hiring firm.

Questions For Your Lawyer

  • If I refuse to sign an intellectual property agreement, can my employer fire me?
  • What should I do if my employer is claiming ownership of something I invented on my own time?
  • I run my own business, but one hiring firm is insisting that I sign an employment agreement; I think they want to make sure they own my work product, which I’m willing to agree to. Is there any harm in signing the agreement?
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