Expert: Shannon Moore - 9/30/2008

Question
Dear Mr Moore,

A friend of mine is currently employed by an organisation (NGO). Recently her employer published a work related report which my friend wrote partly during her working hours, but mainly during her free time.

If she decides to leave her current employer and work for somebody else, what is the legal situation about her published work?

Does her current employer keep all the copyright? Or will my friend as the originator of the work be able to do whatever she wants with the report? For example to have it published by somebody else?

PS: Her work contract doesn't mention anything about work related copyright - for example whether the organisation would own any potential copyrighted material that was produced by their staff during the employment.

Answer
Dear Isabella,

It's really going to come down to the relationship between the employer and employee. This situation is referred to as a work for hire; here's the definition:

"Section 101 of the copyright law defines a “work made for hire” as:

   (1) a work prepared by an employee within the scope of his or her employment; or

   (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or 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."

Based on the description provided, it sounds like scenario 1 fits your friend's situation.

Here's some more information: http://www.copyright.gov/circs/circ9.html

I'd recommend that your friend contact a copyright attorney to go over the particulars.

Hope this helps!

Warmest regards,
Shannon Moore
http://www.tmexpress.com