Who Owns the Copyright? Contractors, Employees, and Work Made for Hire

Last updated: November 2026

The copyright in a work belongs to its author, and paying for the work does not make you the author. A business owns what its employees create within the scope of their jobs. It owns a contractor's work only if the work falls into one of nine statutory categories and both sides signed a work-made-for-hire writing, or if the contractor signed a written assignment. (17 U.S.C. §§ 101, 201(a), (b), 204(a).) Kolmogorov Law, P.C. litigates ownership disputes for Orange County, Los Angeles, and other California businesses.

Call (909) 235-6116 or contact us online if ownership of your logo, website, code, or content is in dispute.

Who owns the copyright: the default rule

Copyright vests initially in the author. (17 U.S.C. § 201(a).) For a work made for hire, the employer or other person for whom the work was prepared is treated as the author and owns all of the rights unless a signed writing says otherwise. (17 U.S.C. § 201(b).) Everything turns on whether the work was "made for hire," a term the statute defines narrowly.

Two ways a work is made for hire

The first is a work prepared by an employee within the scope of employment. The second is a work specially ordered or commissioned, if it falls within one of nine listed categories and the parties expressly agree in a written instrument signed by both of them that it is a work made for hire. (17 U.S.C. § 101.) The categories are short. A contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, and an atlas. (17 U.S.C. § 101.)

Notice what is missing. Software is not on the list. Neither is a logo, a photograph, a website, or marketing copy. A contractor's work in those categories cannot be a work made for hire no matter what the contract says. A clause declaring it one is simply ineffective.

Who counts as an employee

The Supreme Court held that "employee" in the definition carries its general common law agency meaning. Courts look first at the hiring party's right to control the manner and means of the work. They also weigh the skill required, the source of tools, the location of the work, and the duration of the relationship. The right to assign more projects, the method of payment, the provision of benefits, and the tax treatment of the hired party count too. No single factor decides. (Community for Creative Non-Violence v. Reid (1989) 490 U.S. 730, 740-741, 751-752.)

A developer who works from home, bills by the project, uses her own equipment, and receives a 1099 is almost certainly a contractor under that test. A salaried designer on payroll who created the logo during work hours is an employee, and the company owns the logo. People in between, including long-term contractors who function as staff, generate litigation. The federal test here is not the same as California's test for contractor misclassification, and a worker can be a contractor for one and an employee for the other.

Copyright ownership from a contractor: the assignment alternative

When the work-for-hire route is closed, the business must take the copyright by assignment. A transfer of copyright ownership is not valid unless it is in writing and signed by the owner of the rights conveyed. (17 U.S.C. § 204(a).) An email thread, an invoice, or an oral promise will not do, though a signed email may suffice in some circumstances. A well-drafted contractor agreement does both: it declares the work made for hire to the extent the statute allows, and it assigns the copyright to the company in the alternative.

What a business gets without any writing is, at most, an implied nonexclusive license to use the work for the purpose it was commissioned. That license lets you keep the website up. It does not let you stop the contractor from reusing the code for a competitor, and it does not give you standing to sue a copier.

A California wrinkle

California treats the commissioning party under a signed work-made-for-hire agreement as the creator's employer for unemployment insurance purposes, and includes such a creator in the definition of employee for workers' compensation. (Unemp. Ins. Code, § 686; Lab. Code, § 3351.5, subd. (c).) That is one reason sophisticated contractors in California refuse work-for-hire language and insist on an assignment instead.

How the dispute usually arrives

A founder leaves a startup, and the company discovers that its core software was written before he was on payroll and never assigned. A marketing agency's former contractor demands payment to keep using the brand identity she designed. A business that sold itself learns during diligence that its product photographs belong to the photographer, not the seller. In each case the question is the same: was there a writing, and what did it say?

Our pages on software copyright and copied website content address what happens next when the answer is unfavorable. Where the dispute is over the scope of a license rather than ownership, see our guide to IP license disputes.

What we do

We trace the chain of title, document by document, and tell the client what it owns. Where a writing is missing, we negotiate one, often as part of a severance or vendor settlement, because an assignment obtained now is worth more than a lawsuit later. Where the contractor refuses, we evaluate the employee question under Reid and the implied license position, and we defend clients sued for using their own websites. Ownership disputes that reach court are filed in the Central District of California or, when the claim is purely contractual, in the Orange County or Los Angeles Superior Court. Our intellectual property litigation practice covers the related claims.

What to bring to the first meeting

Bring every agreement with the person who created the work: offer letters, contractor agreements, statements of work, invoices, and emails about ownership. Bring the work itself with the dates it was created and delivered. Bring payroll or 1099 records showing how the creator was paid and whether benefits were provided.

Frequently asked questions

What is a work made for hire?

Either a work prepared by an employee within the scope of employment, or a specially ordered or commissioned work in one of nine statutory categories. For the second kind, both parties must sign a writing agreeing it is a work made for hire. (17 U.S.C. § 101.) The employer or commissioning party is then treated as the author. (17 U.S.C. § 201(b).)

Does a contractor own the copyright to work I paid for?

Usually yes, unless the contractor signed a written assignment or the work is one of the nine statutory categories covered by a signed work-for-hire agreement. Software, logos, photographs, and website content are not in those categories. Without a signed transfer you typically hold only an implied license to use the work. (17 U.S.C. §§ 101, 204(a).)

Can a work-for-hire clause cover software written by a contractor?

No. Software is not among the nine categories, so a contractor's code cannot be a work made for hire. The clause should be paired with an express assignment of copyright, signed by the contractor. (17 U.S.C. §§ 101, 204(a).) Most technology contracts do both.

Does my employee own what they created at work?

Not if it was created within the scope of employment; the employer is the author and owner. (17 U.S.C. § 201(b).) Work done off hours, on personal equipment, outside the employee's duties can fall outside that rule, which is why invention and IP assignment provisions in employment agreements matter.

Is an email enough to transfer a copyright?

A transfer must be in writing and signed by the owner of the rights. (17 U.S.C. § 204(a).) Courts have accepted signed emails and electronic signatures in some circumstances, but an unsigned email, an invoice, or an oral agreement is not enough. Get a signed assignment.

Talk to a California copyright ownership attorney

If ownership of your business's creative work is uncertain or contested, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California. See also our pages on the elements of copyright infringement and intellectual property litigation.

This page provides general information about federal copyright law and California law and is not legal advice. Outcomes depend on the contract, the working relationship, and the court.