Work-for-Hire and Ghostwriting in the Creator Economy
As the creator economy has professionalized, more creators are producing content for hire, including writing scripts for brands, creating video content under someone else's name, managing social media accounts as a service, and producing UGC (user-generated content) campaigns. The question of who owns that content is not always obvious, and the default rules may not reflect what either party actually wanted.
The Work-for-Hire Doctrine
Under U.S. copyright law, a work is considered work-for-hire in two situations: when it is created by an employee within the scope of their employment, or when it is specially commissioned under a written agreement that designates it as work-for-hire and falls within one of nine specific categories defined by the statute. For freelance creators, the second category is the relevant one.
If a work does not qualify as work-for-hire, copyright belongs to the creator, not to the person who hired them. Many brands and clients assume that paying for content means they own it. That assumption is wrong unless the copyright has been transferred in writing. Without a written assignment, the creator retains copyright even after being paid.
UGC Agreements and Brand Campaigns
User-generated content campaigns, where brands pay creators to produce authentic-looking content for use in advertising, are a growing segment of creator work. UGC agreements typically include IP provisions that assign copyright to the brand or grant a broad license. Before signing, read the IP and licensing sections carefully.
Key questions for any UGC agreement: What rights is the brand getting? Is this an assignment of copyright or a license? How long can they use the content? On what platforms? Can they modify it? Can they use it in paid advertising? Broad assignments in perpetuity are common in UGC deals; negotiate scope and exclusivity if those terms matter to your business.
Ghostwriting and Attribution
Ghostwriting, which involves creating content that someone else publishes under their own name, is legal and common. The copyright in ghostwritten content can be assigned to the person who commissions it, or it can remain with the writer if there is no written agreement transferring it. Ghostwriting agreements should clearly address ownership, confidentiality, and whether the ghostwriter can reference the work in their portfolio.
FTC considerations are relevant here as well. When a brand pays a creator to post content as their own authentic opinion without disclosing the arrangement, that may implicate FTC endorsement disclosure rules, particularly when the posted content is testimonial in nature.
Protecting Yourself on Both Sides
If you are a creator being hired to produce content, make sure the IP terms are explicit before you deliver the work. If the client wants to own the copyright, that should be reflected in the price. Unlimited, transferable copyright assignments have more value than licenses limited to specific platforms or time periods.
If you are a brand hiring creators, ensure your agreements include explicit IP assignments, warranties that the creator owns the content they are delivering, and indemnification provisions if third-party IP issues arise. Verbal agreements and email threads are not sufficient for copyright transfers under U.S. law. Michael Allen Legal drafts and reviews creator agreements for both sides. Reach out to get your agreements right.
