Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Implied Licenses Are a Last Resort
In the day-to-day counseling about copyright matters, this is perhaps the most common fact pattern, and it’s surprisingly sticky. Company X has hired creative firm Y to create something for it. “It” could be almost anything: computer software code, a logo design, promotional copy, a website, packaging, a photograph—anything that you might want to outsource rather than develop in house.
Normally, when you hire somebody to make you something, you own the final result. If you hire an interior designer to pick out and configure appropriate furniture for your office, you own the furniture once you buy it—and the particular configuration of furniture that your designer recommended. Not the interior designer, and not the furniture manufacturer.
Hiring (Creative) Guns
But creative works are different. By default, the copyright in a work belongs to the creator, not the commissioning party. There are only two exceptions to this. First, if the creator is your employee, and made the work in the scope of her employment, then you are the owner.
But didn’t we say that we had outsourced the work? That means our situation can’t fall in this exception, right? Not exactly. It turns out the law cares much more…