I recently hired and paid a graphics designer with my own money to create a flyer advertisement for the business I work for and I am supposed to be paid back at some point in future but in the meantime I am being told I cannot show the flyer to anyone outside of the company until it is printed because it is company property. So for example if I had a potential customer i cannot show them the flyer to help get them to sign up with the business. I also work for no salary. $0 P/M because the company is not actually earning any money at this time and cannot afford to pay employees. Not even the head of company is making money at this point. So my question is until the company repays me for my expenses who actually owns the rights to the flyer/design myself or the company?
There is really not enough information to give you an answer. You say that you are an employee, but you are not getting paid. That may violate the minimum wage laws. Generally, companies are not permitted to hire someone and not pay them. Plus, it sounds like you are in sales. Does the company permit you to use marketing material that you create or does everything have to be approved before it is used?
As for the copyright issue. A copyright was created as soon as the creator put pen to paper. The issue, as you point out, is who owns the copyright. Generally, if an employee creates something for an employer, the creation becomes property of the employer and the copyright would be owned by the employer upon creation. However, an independent contractor and any other person that holds a copyright, owns the copyright to the work until they transfers the copyright. Generally, this must be done in writing. If you had a written agreement with the graphic designer that this was a work made for hire, and he was in fact working for you, you would own the copyright until you transfer it to your employer.
One other issue you may be overlooking. Does the flyer contain your employer's trademarks?
You need to seek out an intellectual property lawyer. Take him the flyer and any written correspondence you have with your graphic designer and your employer (emails, text messages, contracts, letters, etc.). Also, if you have an employment agreement, and an employee handbook, you should bring those. The lawyer, after reviewing all this material, can tell you what your rights in the flyer are.
Or, you could just wait for your employer to OK the use of the flyer and it will not cost you any lawyer fees and will most like not cost you your job.
The prior answer hits all the key point and most importantly, the key issue: from a practical standpoint, is this the type of issue that you want to spend additional cash on with an attorney? It may or may not be, that's a matter for you to decide.
As already noted, whether you are an employee or contractor is relevant. If you have a contract with the company, (employment or independent contractor agreement) it may contain terms that are determinative. It's also relevant whether you were acting on your own initiative when you had the flyer created vs. if you were acting as the agent of the company at the time. Also, the content of the flyer is relevant (whether it's something you designed entirely on your own vs if the flyer contains information provided by the business or the business's logos, TMs, and other intellectual property). Another point that is also missing from your information is whether you are an owner (member if LLC or shareholder if this is a corporation)? If yes, you would need to consider the impact of the company's bylaws or operating agreement.
In any case, far more information would be required in order for an attorney to get you a proper answer.
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