Q: Do artists have any copyright to product that was created working at an hourly rate for said employer?

A: Were you an employee? If not, what does your written agreement with the company state?

Any copyrightable work created by an employee acting within the scope of his or her employment is a “work made for hire.” The parties do not need to address works made for hire in their employment agreement, negotiations, or any other written agreement. If it’s an employee-employer relationship, and there is no written agreement to the contrary, the default is that the employer owns the copyright.

However, any copyrightable work created by an independent contractor for the employer who hired them, is not a “work for hire” without an express written agreement. So, if you're considered an independent contractor, and there is no written agreement assigning you ownership, the default is that the independent contractor owns the copyright.

How would a court determine if someone was acting as your employee or as an independent contractor? The questions of whether a person is an “employee” under the work made for hire rules must be determined under the general common law of agency, which considers the hiring party’s right to control the manner and means by which the product is accomplished. That is, it is not sufficient that the hiring party exercises control over the end result; the hiring party must also control the process by which that result is achieved. Even if the hiring party issues specific guidelines to which the end result must conform, that doesn’t necessarily establish the existence of an employment relationship under the work made for hire rules. There has already been a lot written on how to determine whether a person is acting as an employee or independent contractor, but for the purposes here, it’s important to know that it’s not always a cheap or easy determination.

The lesson here is: Don’t start work without a contract. Determining ownership rights after the project has completed is like putting a helmet on while you’re on the way to the hospital after crashing your bike. You have already lost the preventative benefits and most of your negotiating leverage.