work for hire clarification

[binary]

Hi. My company has created a CD-ROM for a client. They came to us with nothing, just an idea to have an educational, entertaining CD-ROM about animals. We made everything, including character designs for the CD guide character and various animals. It was our idea to create a guide character. We made music, found facts to include in the project, animated it, and created packaging. We don't have any type of proper contract with them. What we have is basically more of an invoice that says we'll make this and that for so much money. Nowhere does it specify who owns what, and the phrase 'work for hire' isn't in there.

The question: Who owns the copyright for the guide character? They contracted us to make CD-ROMs, but what if they want to use the character on lunch boxes, backpacks, or even make a tv show with the characters in it?

Thanks for your time.

 

[lawrat]

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

If you are not a regular employee, there must be a written contract specifically stating it is a work for hire contract.

It is not work for hire; it is yours. Also, you may consider trademarking this character.

FROM FREEADVICE.COM COPYRIGHT SECTION:
A work for hire is a term of art that refers to a specific situation where ownership of a copyright does not vest in the author but rather in the person paying for the development of the work.

Employees: Historically, an employer owned the copyrights to all work created by the employee within his scope of employment. The definition of "employee" is the traditional one used in labor and personnel type matters. Failure to provide employment benefits, or to pay Social Security taxes weighs heavily against a finding of employer-employee relationship status. If an employee creates a work subject to copyright in the ordinary course of his/her employment (i.e., if he/she writes copies, draws, takes a photo, writes a software program, or does a graphic design), the copyright belongs to the employer. The employer may register without written permission from the employee.

Free Lancers: Prior to 1978 when one hired a "Free-Lancer" to create material subject to copyright, the company commissioning the work would almost always be found to be the copyright owner. While one can still commission a work and thereby initially own the copyright, the process is now more difficult, requires certain paperwork in advance, and is limited to certain categories of works listed in the statute.

There are now only 9 categories of works eligible for "work made for hire" status. While these 9 categories are fairly broad and probably encompass most of what firms buy and sell, there may be significant gaps.

A "work made for hire" is one specially ordered or commissioned for use as:

a contribution to a collective work

part of a motion picture or other audiovisual work

a translation

a supplementary work

a compilation

an instructional test

a test

answer material for a test, or

an atlas