Introduction
Intellectual Property Law is a vast and complex field, constantly evolving at an accelerated pace. It encompasses provisions that govern Copyrights, Trademarks, Patents, Designs, and more. The provisions extend their purview over the ownership of the Intellectual Property and determine who owns it because in certain cases, the owner of the Intellectual Property is not the person who created it.
Under Section 17 of the Copyright Act, 1957 [“The Act”] the author of the work is always the first owner of the Copyright unless the work is done by the author in the course of employment, for consideration with no agreement to the contrary or when the author is employed under an agreement of service or apprenticeship.[1] In all such conditions, the person for whom the author does the work would be the owner.
A Freelancer is an independent contractor and is not associated with any company, let alone employed. They work on a per-project or per-contract basis for a company and are just engaged for their services. They do not fall under the above-mentioned provision of the Act, which has made the situation vague and unclear for them. This article delves into the intricacies involved in the freelancing situation and outlines the current developments.
Doctrine of “Work for Hire”
“Work for Hire” doctrine was developed in the United States of America somewhere around the 20th Century. This doctrine is used to determine the owner of the Copyright when the work is completed under employment or under the obligation of a contract. The doctrine includes work made by an employee in the course of employment and work specially ordered or commissioned for use. An employer owns an employee’s work, but under certain conditions, an Independent Contractor’s work is owned by the person who ordered it and paid the commission as long as nothing to the contrary is stated in the contract.[2]
The U.S. Supreme Court in the case Community for Creative Non-Violence v. Reid considered the doctrine and issued a landmark decision. The ruling has withstood the test of time and remains just as relevant today. It was determined that a court should apply general agency principles when questions arise under the “Work for Hire” doctrine. It is essential to establish whether the work was created by an employee or an independent contractor before applying the general principles of agency and relevant to the case.[3]
The Indian Context
The situation surrounding Freelancing is similar to that in the United States of America. The Act under section 17 states different conditions under which the work is owned by the employer of the work. One such condition under section 17(b) states that work done for valuable consideration, with nothing to the contrary stated in the contract, the work would be owned by the person who ordered the work instead of the author of the work.[4]
Similarly, section 17(c) states that any work done under a contract of service without anything contrary stated in the contract, the work is owned by the person who ordered the work. The provisions of the Act are very similar to the “Work for Hire” doctrine of the United States of America; the Indian legal framework has adopted the doctrine in its truest sense.
Further, Indian Courts have deliberated over this issue in various landmark cases whose importance has not withered over time. In the case of Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association, it was held by the Supreme Court that as per the provisions of Section 17(b) a film producer gives a commission or valuable consideration to the composer of music or lyrics for their work, unless there is a contract to the contrary the producer is the owner of the composition. While under section 17(c), the composer of music or lyrics is employed under a contract of service and without anything contrary stated in the contract, the producer would be the owner of the work.[5]
Moreover, in the case of Khemraj Shrikrishnadas v. Garg & Co., it was held by the High Court of Delhi that if an author does a work for a publisher and receives a consideration for it then subject to any contract to the contrary, the work would be owned by the publisher.
Also, in the case of T. Thomas & Ors. vs Malayala Manorama Co. Ltd., it was held by the Kerala High Court that when the creator of the art is an employee and the art is created in the course of employment, the owner of the Copyright would be the employer but when there is no course of employment there would be no employer and such Copyright would be owned by the original creator of the art.
Conclusion
The question of ownership of Intellectual Property, especially Copyright for Freelancing is very nuanced, yet it is very promising. As under Section 17 of the Act, the author is the first owner of the Copyright unless specific conditions apply, such as employment or a contract of service without an agreement to the contrary. Freelancers are independent contractors and they do not work under a contract of service but rather under a contract for service. This allows them to be the author of their own creations most of the time, until agreed otherwise.
The Indian legal framework that is aligned with the doctrine of “Work for Hire” in the United States provides clarity by stressing the importance of contractual terms. Indian courts have repeatedly emphasized this principle as seen in landmark cases where the courts have held that when there is no contract of service or consideration, then the creator retains ownership. Further, it was reinforced the creator remains the rightful owner when there is no course of employment.
This ever-evolving jurisprudence empowers Freelancers to safeguard their rights through well-drafted and unambiguous contracts. It amplifies the significance of explicitly negotiating and properly defining ownership terms before undertaking any project for Freelancing. Overall, the Indian approach offers Freelancing security and a sense of control over their creations and it fosters a healthy, innovation-driven environment. As the awareness of Freelancers increases gradually and they understand the intricacies of contracts, Freelancers would confidently navigate the complexities of Intellectual Property ownership, ensuring that their contributions are rightfully recognized and protected.
AUTHOR: NAKUL AGARWAL, 3RD YEAR LAW STUDENT AT NATIONAL LAW UNIVERSITY ODISHA
[1] The Copyright Act 1957, s 17.
[2] David O’Klein, ‘United States: Work-For-Hire Clauses and Agreements: One Key to Intellectual Property Ownership’ (Mondaq, 04 March 2016) http://<https://www.mondaq.com/unitedstates/employee-rights-labourrelations/471596/workforhire-clauses-and-agreements-one-key-to-intellectual-propertyownership#:%20%CB%9C:%20text=According%20to%20the%20Copyright%20Act,contribution%20to%2%200a%20collective%20work.%22> accessed 27 June 2025.
[3] Community for Creative Non-Violence v. Reid [1989] 490 U.S. 730.
[4] The Copyright Act 1957, s 17(b).
[5] Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association [1977] 2 SCC 820.
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