Arka
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Upload & Sell: On
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II am pretty sure the OP owns the copyright, because it is highly unlikely that a work for hire relationship exists under the OP's stated facts. First, the relevant law; a work for hire must fall into one of the two subparagraphs appearing immediately below.
17 U.S.C. § 101
A "work made for hire" is--
(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. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that.
17 U.S.C. § 101(2) doesn't squarely apply to the OP's facts, and 17 U.S.C § 101(1) barely applies. Determining whether the OP was an employee working within scope of his duties relationship is a question of common law of agency. The factors governing this question was summarized by the Supreme Court as a multifactor test;
(1) the hiring party's right to control the manner and means by which the product is accomplished,
(2) the skill required;
(3) the source of the instrumentalities and tools;
(4) the location of the work;
(5) the duration of the relationship between the parties;
(6) whether the hiring party has the right to assign additional projects to the hired party;
(7) the extent of the hired party's discretion over when and how long to work;
(8) the method of payment;
(9) the hired party's role in hiring and paying assistants;
(10) whether the work is part of the regular business of the hiring party;
(11)whether the hiring party is in business;
(12) the provision of employee benefits;
(13) and the tax treatment of the hired party.
Community for Creative Non-Violence v. Ried 490 U.S. 730, 752 (1989). Consider the factors, and if most of them weigh in favor of an employee-employer relationship, you have a work-for-hire situation. Under these facts, few of the factors weighs in favor of the paper.
The foregoing is not submitted as counsel, as I am not a lawyer. (Yet). That said, the advice of many prior posters is sound; make sure you have a contract clearly indicating that you intend to retain your copyrights.
Hope that helps.
Arka C.
Edited on Aug 13, 2008 at 11:37 AM
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