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I created an artwork for a hotel project and my last employer. I want to sell prints of this piece. Am I allowed to do so?

Jamaica, NY |

I was asked by my employer to create this custom piece of artwork. Now other parties are asking for prints of this piece. Can I sell those pieces?

Attorney Answers 3



The first question I have is whether there was any written agreement of any kind (contract, email even text)?

Let us assume not for the moment. Under US law the IP (copyright) interest stays with you unless you were working under a written work-for-hire agreement (or are an employee - see below) and the hotel gets an implied license for their use of the work product. That is, they get to use it for what it was intended for. They could not, for example, sell the design to Bono for his next album cover.

That said, it would not surprise me if they pushed back when they find out that you intend on recreating the same work for another property. The argument may go something like: we paid for a "custom" piece which implies that it cannot be recreated in other similar properties, etc. I am not saying that this is a "winning"argument but it's not a bad one.

Further, if this is your bona fide employer (meaning they payroll you and you are not an independent contractor, etc) and this type of work is within the scope of your employment (meaning you were not a front desk clerk that does this in your spare time) then they own ALL rights to the work by operation of law.

I will link you to some helpful material below and you are welcome to contact me if you would like further clarification.

Best regards,
Natoli-Lapin, LLC

The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

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As my colleague has pointed out, the key is whether this work was done within the scope of your employment, as a work-for-hire with a written agreement or paid as an additional fee separate from your salary? The facts are key in determining your rights. You should consult withe an entertainment or intellectual property attorney to clarify your rights before you exploit the image commercially.

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The answer to your question would depend on the employment arrangements you had when you created the original piece. If it was a "work for hire", or you specifically agreed to turn over copyrights in the piece, then you cannot create prints, which would be considered derivative works. If no such agreement existed, then you may create derivative works. You should consult an attorney if you are unsure of your employment arrangement to avoid potential litigation. You could always create another unique piece inspired by the original, but different enough so as not to be a copy. Similarities would be expected due to the common artist, and would likely draw similar attention as that of your original creation.

I am an attorney licensed to practice in Texas, Louisiana and before the United States Patent and Trademark Office. Laws vary from jurisdiction to jurisdiction and the above may not be an accurate assessment of the laws for your area. The above should be taken as general guidance and not specific legal advice. For specific legal advice you should seek a licensed attorney in your jurisdiction practicing in the area specific to your issue. The above does not constitute or establish an attorney client relationship. If you wish to receive specific advice about your legal issue, then contact my office to schedule a personal consultation.

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