Most copyright disputes between companies and the people who work for them come down to one sentence: the company paid for the work, so it assumed it owned it. Under Indian law, paying for a work does not make you its owner. Only employment in the strict sense, a few named exceptions, or a written assignment does.
Quick reference
| Default | The author is the first owner |
| Employees | The employer owns work made in the course of employment under a contract of service, unless agreed otherwise |
| Contractors and freelancers | The contractor owns, unless the work is assigned in writing |
| Commissioned photographs, paintings, portraits, engravings and films | The person who commissioned and paid owns |
| Journalists | The newspaper owns for publication purposes; the journalist keeps the rest |
| Joint works | Co-owned; each owner needs the other’s consent to license |
Who the author is
The Act defines the author for each kind of work: the writer of a literary or dramatic work; the composer of a musical work; the artist of an artistic work; the photographer of a photograph; the producer of a film or sound recording; and, for a computer-generated work, the person who causes it to be created. The author is the starting point for ownership, and for moral rights, which stay with the author whatever happens to the copyright.
The default and the exceptions
The author is the first owner of copyright. The Act then lists the situations in which someone else is:
Employment. Where a work is made by an author in the course of employment under a contract of service — a genuine employer–employee relationship — the employer is the first owner, in the absence of any agreement to the contrary. The work must be within the scope of the job: an engineer’s code for the company’s product belongs to the company; the novel the engineer writes at weekends does not. A consultant on a retainer, a contractor, a freelancer or an agency is not under a contract of service, and this exception does not reach them.
Commissioned photographs, paintings, portraits, engravings and films. Where one of these is made for valuable consideration at the instance of another person, that person is the first owner, unless agreed otherwise. The wedding photographer’s client owns the photographs; the company that pays a studio to make a corporate film owns the film. The list is closed: it does not include software, logos, text, music or illustrations.
Journalists. A literary, dramatic or artistic work made by an employee of a newspaper or magazine for publication there belongs to the proprietor for the purposes of publishing it in a newspaper or magazine, and to the journalist for every other purpose.
Public lectures. A lecture delivered in public on behalf of another person belongs to that person.
Government, public undertakings and international organisations own works made or first published by or under their direction.
Since 2012, none of the exceptions affects the rights of the author of a work incorporated in a film — a composer or lyricist keeps the rights the Act gives them even where the film belongs to the producer.
The gap that catches companies
Put the rules together and the gap is obvious. Software written by a contractor, a logo designed by a freelancer, website text from an agency, illustrations from an outside studio, a course written by a visiting faculty member — all belong to the person who made them, not the company that paid, unless there is a written assignment. The company has, at most, an implied licence to use the work for the purpose it was commissioned, and the scope of that licence is exactly what gets argued about later.
Two cases illustrate the point at either end. A cartoonist who created characters before joining a newspaper kept them when he left, because they were not made in the course of that employment. And design agencies have successfully asserted ownership of logos against clients who had used them for years, because nothing was ever assigned.
Joint authorship
Where two or more people collaborate and their contributions cannot be separated, the work is one of joint authorship and they own it together. Each needs the others’ consent to assign or license the whole. The term runs from the death of the last surviving author. Collaborations that are not planned — a co-founder’s contribution, a contractor’s edits — produce joint works no one intended, and the consent requirement then bites.
Fixing it
Employment contracts should confirm that works made in the course of employment belong to the employer, define the scope broadly, and add an assignment of anything that falls outside, with a moral-rights consent for modifications.
Contractor, freelancer and agency agreements need a written assignment of copyright in the deliverables, signed by the author, identifying the work, the rights, the territory and the term — because an assignment that does not specify them is read as five years and India only, and rights not exercised within a year of assignment can revert. There is a separate guide to assignments.
Founders should assign to the company anything created before incorporation.
Past gaps can be closed by a confirmatory assignment, which most contractors will sign for a modest sum; the alternative is discovering the gap during a fundraise or a sale.
Frequently asked questions
Does my employer own what I create at work? Work made in the course of employment under a contract of service belongs to the employer, unless the contract says otherwise. Work outside the scope of the job, or made by a consultant or contractor rather than an employee, belongs to the person who made it.
Who owns a logo designed by a freelancer? The freelancer, unless the logo is assigned to the client in writing. Paying for the design gives the client at most an implied licence to use it for the purpose it was commissioned.
Who owns software written by a contractor? The contractor, unless there is a written assignment. Software is not in the list of commissioned works whose ownership passes to the person who paid.
Who owns commissioned photographs in India? The person who commissioned the photograph for valuable consideration, unless agreed otherwise. The same rule applies to commissioned paintings, portraits, engravings and films — and to nothing else.
What is a joint work? A work made by two or more authors whose contributions are not distinct. It is co-owned, and each owner needs the others’ consent to assign or license it.
How do I make sure my company owns the work it pays for? Employment contracts that confirm ownership; written assignments in every contractor, freelancer and agency agreement, signed by the author; and confirmatory assignments to close any past gaps.
Useful official resources
- Copyright Office, India — the Act and the assignment recordal form
See our related notes on assigning copyright, what copyright protects and moral rights.
Software, branding or content created by people who were never asked to assign it? Talk to us.