A founder hires a young designer in-house. Together they build a logo, a website, a brand guideline. Two years later the designer resigns and registers a copyright over the logo in her own name. The founder is shocked. He paid her salary for two years. He gave her the brief, the office, the laptop, the colour palette. How can the logo not be his?
Now picture the same founder commissioning a freelance illustrator to design that very logo. He pays an invoice and receives a high-resolution file. A year later he wants to put the logo on bottles, T-shirts, packaging, an animation reel. The illustrator says, fine, but each new use needs a fresh fee. The founder is shocked again. Was that not what he paid for?
Both stories turn on Section 17 of the Copyright Act 1957. The same statute treats the in-house designer and the freelance illustrator very differently. This guide explains how, and what to put in your contracts on both sides of that line.
A Logo, A Resignation, A Surprise
Indian copyright law starts from a simple premise. The author of the work is the first owner of the copyright. The novelist owns her novel. The composer owns his song. The photographer owns the photograph. Anything else is an exception, and exceptions must be earned by either statute or contract.
That single premise is what makes employee and freelancer ownership disputes so common. Both sides assume something obvious about who owns the logo or the article or the photograph. Both sides remember different things. The Act decides on the basis of the relationship and what the document says, not on a sense of fairness.
The Default Rule: Author Is First Owner
The default starting point is set out in the project commentary on the Copyright Act. The author of the work is the first owner of copyright in the work. "Author" is defined for each kind of work in Section 2(d). For a literary work it is the writer, for an artistic work it is the artist, for a photograph the photographer, for a cinematograph film the producer, for a sound recording the producer, for a computer-generated work the person who causes the work to be created.
If a person creates a work entirely on her own behalf — writes a book, takes a photo, composes music — she is both the author and the first owner. The interesting cases begin when the work is made at the instance of another, either as an employee or under a commission.
Section 17 and Its Five Exceptions
Section 17 codifies five exceptions to the default rule. Read each one carefully because the differences between them decide ownership in real disputes.
- Newspaper / magazine employees — literary, dramatic or artistic work made by an author in the course of employment by the proprietor of a newspaper, magazine or similar periodical, under a contract of service or apprenticeship, for the purpose of publication in such periodical [Section 17(a)]. The proprietor is the first owner only for the purpose of publication in such media. The author keeps copyright for all other uses.
- Photograph, painting, portrait, engraving or cinematograph film commissioned for valuable consideration [Section 17(b)]. The person who commissioned the work is the first owner unless there is a contrary agreement.
- Other work made in the course of employment under a contract of service [Section 17(c)]. The employer is the first owner unless there is a contrary agreement.
- Government work [Section 17(d)]. The Government is the first owner unless there is a contrary agreement.
- Work made for a public undertaking and works of certain international organisations [Section 17(dd) and (e)]. The undertaking or organisation is the first owner unless there is a contrary agreement.
Two phrases recur. "Contract of service" decides employment-driven ownership. "Contrary agreement" lets parties override every default. Get those two right and most disputes disappear.
Contract of Service vs Contract for Service
The most important distinction in Section 17 is between a contract of service and a contract for service. The Act does not define either; courts have built the test through cases.
Where a man employs another to do work for him under his control, so that he can direct the time when the work shall be done, the means to be adopted, and the method in which the work shall be carried on, then the contract is a contract of service. If, on the other hand, a man employs another to do certain work but leaves it to that other to decide how that work shall be done, then it is a contract for service.
That summary, drawn from the project commentary, captures the everyday test. Employees are subject to control. Independent contractors are not. The deeper test from Beloff v Pressdram (1973) RPC 765 is whether the worker is an integral part of the business or only accessory to it. Other relevant factors include who bears profit and loss, whether the worker is regarded as part of the employer's organisation, the parties' own view of their relationship, and the structure of the trade.
University of London Press v University Tutorial Press (1916) 2 Ch 601 applied this in a copyright dispute. An examiner who prepared question papers for a university was free to set the questions at his own convenience using his own skill and judgment. He was not under a contract of service; he was a contract-for-service consultant. The copyright in his question paper stayed with him.
So an in-house copywriter who works fixed hours, takes briefs from an editor, and uses company tools is on a contract of service. A consultant brought in to design a logo, paid a project fee, who chooses her own hours and methods, is on a contract for service. The first surrenders copyright to the employer by default; the second does not.
Journalists, Magazines and the Split Ownership Rule
Section 17(a) creates an unusual split ownership for media employees. A reporter on the staff of a newspaper, employed under a contract of service or apprenticeship, writes an article for publication in the paper. The proprietor is the first owner of copyright in that article only for the purpose of publication in such periodical. The reporter keeps the copyright for all other purposes.
So if the same article is later turned into a chapter of a book, syndicated to a competitor magazine years later, dramatised into a film, or republished in an anthology, the reporter is the owner of those uses, unless the contract assigns more. This is one of the few places in Indian copyright law where ownership is intentionally split between two persons over the same work, by reason of the medium of original publication.
For media houses building digital archives, this split matters. The default Section 17(a) right covers print or "similar periodical" publication. Reusing decade-old articles for podcasts, video summaries, or AI training is a separate matter and usually needs an express assignment.
Photographs, Paintings and Cinematograph Films
Section 17(b) is the only place in the Act where a commissioning party gets copyright by default in the absence of an employment relationship. It applies only to listed categories: photographs, paintings, portraits, engravings, and cinematograph films, made for valuable consideration at the instance of any person.
So a wedding photographer paid by the family typically gives copyright to the family by operation of Section 17(b), unless the contract says otherwise. The same is true for a commissioned portrait or a commissioned engraving. Producers of films are first owners of cinematograph films by reason of being the "author" under Section 2(d) read with Section 17(b) for commissioned works.
The trap is that Section 17(b) is a closed list. It does not include logos, code, articles, jingles, brochure copy, illustrations not made as paintings, or graphic design files. So a commissioning client who hired a freelancer to make a logo or write a brochure does not automatically own copyright. The freelancer is the author and first owner unless a written assignment under Section 18 and Section 19 is signed.
When Is It "In the Course of Employment"?
Section 17(c) only applies to work made in the course of employment. The commentary on Section 17 puts the boundary cleanly. The work must not just be done by the employee, it must be done in the course of employment. Employees may write or design independently at home. Copyright in a work done by an employee on her own time and not in the course of her employment remains with the employee.
So a marketing executive who paints landscapes on weekends and a software engineer who builds a niche app at night both keep copyright in those works. The day job assignment does not vacuum up unrelated personal projects. Where it gets tricky is when the personal project overlaps with the employer's business or uses confidential information learned at work.
The Delhi High Court considered this kind of factual dispute in Diljeet Titus v Alfred A. Adebare (2006) 32 PTC 609 (Del). A senior advocate left a law firm and copied client files and materials including drafts and addresses. The firm sued for copyright infringement and breach of confidentiality. The defending advocate argued there could be no contract of service between two advocates because of Bar Council rules. The Court rejected the argument. It held that a salaried advocate working full-time inside a firm under direction can be on a contract of service for copyright purposes, and the firm was the first owner of work created by him in the course of that employment. The case is a powerful reminder that titles like "associate", "consultant" or "advocate" do not control. The substance of the relationship does.
If your contracts also touch employment terms broadly, you may want to review them alongside other clauses on confidentiality, post-exit obligations and notice periods. See our notes on employment contract clauses that protect both sides.
Freelancers and Independent Contractors
Most disputes we see in startups are about freelance work. The pattern is familiar. A founder hires a freelance designer or developer or writer. Money moves on an invoice. The work is delivered. There is no signed assignment. A year later the founder wants to register a trademark over the logo, file copyright registration, raise funding, or block someone else from copying it. The freelancer suddenly notices that no assignment was ever signed.
The legal position is firm. Unless the work falls in the narrow Section 17(b) list (photograph, painting, portrait, engraving, cinematograph film), the freelancer is the author and first owner. Without a written assignment under Sections 18 and 19, the commissioning party has at best an implied licence to use the work for the project for which it was paid. No more.
The fix is structural. A short, written copyright assignment signed before or at the time of payment, identifying the work, the rights, the territory and the duration. For long-term freelancers, a master services agreement that vests all deliverables in the company on payment, plus a moral rights waiver to the extent the law allows. For more on what the assignment must specifically state, see our guide on copyright assignment clarity.
Government and Public Undertaking Work
Section 17(d) and (dd) cover government and public undertaking outputs. Where a work is made by or under the direction or control of the government, the government is the first owner of the copyright in the absence of a contrary agreement. Similar logic applies to public undertakings. A separate sub-clause covers works of certain international organisations.
So manuals, reports, training material and creative outputs prepared by government officers or by contractors paid out of public funds typically belong to the government, not the individual officer or vendor, unless the contract says otherwise. Public-sector vendors should check this clause carefully before using government-funded outputs in private commercial work.
What Should I Actually Do Now?
- Audit your existing employee contracts. Look for an explicit IP clause that vests work created in the course of employment in the company. If absent, get a fresh acknowledgement signed.
- Audit your freelance arrangements. For every logo, website, code base, or content piece bought from outside, check if a signed assignment exists. If not, get one signed now while the relationship is still warm.
- Distinguish employees from contractors clearly. Use one template for contracts of service and a separate template for contracts for service. Mixing them up creates the worst of both worlds.
- Use express clauses, not implied ones. Even where the law would default the right way (e.g., an employee writer under Section 17(c)), an express clause silences future arguments about whether the work was "in the course of employment".
- Address future works. Make sure the clause covers works created during the term, not just one project, with a sensible carve-out for genuine personal projects.
- Cover moral rights. Add a written acknowledgement that the company can use, edit and adapt the work for business purposes, with no claim that ordinary edits damage reputation.
- Pay correct stamp duty on freelance assignments. Under-stamping does not destroy the deed but can delay enforcement when it matters most.
- Maintain a register of works and authors. Date, file name, author, project. Useful in any future dispute.
- Get a quick legal review before high-stakes events. Trademark filings, fundraising, M&A or licensing all involve copyright due diligence. Fix gaps before, not after.
Get Ownership Settled on Day One
Copyright in employee or freelance work is decided by Section 17 at the moment of creation, not by anyone's later expectations. If your relationship is a true contract of service, Section 17(c) hands the right to the employer. If it is a contract for service outside Section 17(b), the right stays with the freelancer. Newspaper and magazine work splits ownership in a particular way under Section 17(a). Commissioned photographs, paintings, portraits, engravings and films behave differently again under Section 17(b).
None of this prevents the parties from agreeing otherwise. The phrase "in the absence of a contrary agreement" appears in every limb of Section 17. A short, well-drafted contract is therefore the difference between a clean cap-table and a logo dispute that surfaces during due diligence years later. If you are setting up an employment template, a freelancer agreement, or a brand IP audit, the team at Pinaka Legal is happy to walk through the specific clauses that fit your business.
Frequently Asked Questions
Who owns the copyright in work made by an employee?
Under Section 17(c) of the Copyright Act 1957, where work is made in the course of employment under a contract of service, the employer is the first owner of copyright in the absence of a contrary agreement. So an in-house designer's logo or an employee writer's content typically belongs to the employer. The work must, however, actually be made in the course of employment, not in the employee's free time on personal projects.
What is the difference between contract of service and contract for service?
A contract of service is employment. The employer controls when, where, and how the work is done. A contract for service is independent contracting. The person doing the work decides how to do it and is paid for the result. Indian courts use the integration test from cases like Beloff v Pressdram (1973). Employees create work integrated into the business; independent contractors create work that is accessory to it.
Does the employer own copyright in everything the employee creates?
No. Section 17(c) covers work made in the course of employment. Work done by the employee on her own time, on her personal projects, on subjects unrelated to her job, generally belongs to her. Diljeet Titus v Alfred A. Adebare (2006) flagged this carefully. The duties spelled out in the employment letter, the timing of the work, and the use of office resources will all be examined in any dispute.
Who owns copyright in articles written by a journalist?
Section 17(a) handles literary, dramatic or artistic work made by an author employed by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship for publication in that periodical. The proprietor is the first owner only for the purpose of publication in such media. In all other respects the journalist retains copyright. So syndicated reuse, book compilations, or film rights stay with the author unless separately assigned.
Who owns copyright in a commissioned photograph or painting?
Section 17(b) covers photographs taken, paintings or portraits drawn, engravings made, and cinematograph films created, for valuable consideration at the instance of any person. In the absence of a contrary agreement, the person commissioning the work is the first owner of copyright. So a wedding photographer paid by the family typically transfers ownership to the family by operation of this clause, unless the contract says otherwise.
Does Section 17(b) apply to all freelance work?
No. Section 17(b) is limited to specific categories: photograph, painting, portrait, engraving, or cinematograph film, made for valuable consideration. Designs of logos, code, articles, and most other content do not fit those categories. For those, the freelancer is the author and first owner unless a written assignment under Sections 18 and 19 is signed. So for code or copy or graphic design, the commissioning party needs an express written assignment.
Who owns copyright in software written by a developer?
If the developer is an employee under a contract of service and writes the code in the course of employment, the employer is the first owner under Section 17(c). If the developer is a freelancer, an independent contractor, or works through their own company under a contract for service, the developer's side owns the copyright unless a written assignment under Section 19 is signed. So companies hiring freelance developers must obtain a written copyright assignment.
Can an employee keep copyright by special agreement?
Yes. Section 17 provides default rules, but parties can override them by a contrary agreement. So an employment contract can let the employee keep copyright in specific outputs, or jointly own them, or retain rights for use in the employee's portfolio. Equally, a freelance contract can clearly assign all rights to the commissioning company. The contrary agreement must be clear, in writing, and ideally signed before the work is created.
What happens to work done after employment ends?
Work created after the employment ends generally belongs to the former employee, since it is no longer made in the course of employment. The employer's rights stop at the date of separation for new outputs. Old work created during employment continues to belong to the employer. Disputes often arise about works in progress at the time of separation, which the contract should expressly address.
Does the employer own copyright in work the employee did at home?
It depends on whether it was in the course of employment. The commentary on Section 17 specifies that work done by an employee on her own time and not in the course of her employment is in the employee. So personal blog posts, weekend art projects, or side hustles that are unrelated to the job duties usually belong to the employee. Work-from-home tasks that are part of job duties remain employer-owned.
Who owns copyright in government employee work?
Section 17(d) and (dd) cover government and public undertakings. Where a work is made by or under the direction or control of the government, the government is the first owner of copyright in the absence of a contrary agreement. Similar logic applies to public undertakings. So manuals, reports and creative outputs prepared by government officers in the course of duty belong to the government, not the individual officer.
What should a startup put in its IP clauses for employees and freelancers?
For employees, an explicit assignment of all IP created in the course of employment, including future works, with carve-outs for genuine personal projects. For freelancers, a separate assignment under Sections 18 and 19, listing the work, rights, territory, duration and royalty. For both, a moral rights waiver to the extent permitted, an obligation to assist with registrations, and a confidentiality clause covering source materials. A pre-existing IP schedule helps avoid later disputes.
Written by the Pinaka Legal Editorial Team. For queries, call +91 8595704798 or email info@pinakalegal.com. For more articles on Indian law, visit the Pinaka Legal Blog.