Intellectual Property Law

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I create miniature sculptures and these are then sold to…

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Hi, I create miniature sculptures...
Hi, I create miniature sculptures and these are then sold to various miniature companies. They take the original I made and create molds and then make castings they sell as a company.I am told I am "work for hire" and recieve a 1099 for tax purposes for such work. I am told once they pay me, they have all the rights to the original, ect. This is only a verbal agreement. No paperwork is ever given to me or signed.Something seems wrong about this. Should they be generating a contract or something for me to be a work for hire for it to be legally binding to the extent they claim they own the original and all rights after buying it from me?I would like to be able to retain the copywrite to my work while also allowing them to do what they want with the original. Can this be done, and if so in what ways?
Submitted: 3 months ago.Category: Intellectual Property Law
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3/23/2018
IP Lawyer: Robert McEwen, Esq., Lawyer replied 3 months ago
Robert McEwen, Esq.
Category: Intellectual Property Law
Satisfied Customers: 18,160
Experience: Licensed Texas General Practice Attorney
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Thank you for using JustAnswer.

It appears that you still own the copyright to these sculptures. Assuming that you have not "assigned" the rights to the sculptures, work for hire has not occurred either.

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:
a a work prepared by an employee within the scope of his or her employment
or
b a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas,
if the parties expressly agree in a written instrument signed by them that the
work shall be considered a work made for hire.

The Supreme Court’s decision in Community for Creative Non-Violence v. Reed addressed that definition. The Court held that one must first ascertain whether a work was prepared by (a) an employee or (b) an independent contractor. If an employee created the work, part 1 of the definition above applies, and the work will generally be considered a work made for hire. But note that the term “employee” in the definition differs from the common understanding of the term. For copyright purposes, “employee” means an employee under the general common law of agency. See the subheading “Agency Law” below. If an independent contractor created the work, and the work was “specially ordered or commissioned,” part 2 of the definition above applies. An “independent contractor” is someone who is not an employee under the general common law of agency.

A work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire.

As such, it appears that you still own the work. Now that being said, you can give them a "license" to use the work, but you still own it.

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

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IP Lawyer: Robert McEwen, Esq., Lawyer replied 3 months ago

Did you have any other questions before you rate this answer?

Ask Your Own Intellectual Property Law Question
IP Lawyer: Robert McEwen, Esq., Lawyer replied 3 months ago

Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions).

If you can't see the stars, you may need to scroll up / down / left / or right to see them. This is where you rate so that the question will close out.

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IP Lawyer: Robert McEwen, Esq., Lawyer replied 3 months ago

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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IP Lawyer: Robert McEwen, Esq., Lawyer replied 2 months ago

Hello?

Ask Your Own Intellectual Property Law Question
IP Lawyer: Robert McEwen, Esq., Lawyer replied 2 months ago

I see that you still have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable.

Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

If you feel that I have gone above and beyond in this answer (my average answer is about 10 minutes) bonuses are greatly appreciated. Thank you, ***** ***** luck to you!

▼ RATING REQUIRED! ▼ Please don't forget to Rate my service positively. It's only after you rate that I am credited.

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