Hiring an Intern for Your Tucson Business?
Who Owns the Work They Create?
Interns can be a great addition to a small business. A student may help with social media, photography, marketing, graphic design, website content, videos, research, or other projects while gaining practical experience in a professional environment.
But before a Tucson business owner brings on an intern—particularly an unpaid intern—there are several legal questions worth considering.
One of them is whether the internship can legally be unpaid.
Another, often overlooked question is:
Who owns everything the intern creates?
These are two different legal issues. The first generally involves employment and wage-and-hour law. The second may involve copyrights, trademarks, contracts, confidentiality, and other intellectual property rights.
At Tucson Trademarks, we focus on trademarks, copyrights, licensing, and intellectual property matters—not employment law. But these areas frequently intersect for small-business owners. Understanding that intersection can help you identify the questions you should be asking before an intern starts creating valuable assets for your business.
Can a For-Profit Business Have an Unpaid Intern?
Simply calling someone an “intern” does not necessarily mean a business can legally have that person work without pay.
The federal Fair Labor Standards Act (FLSA) generally requires for-profit employers to pay employees minimum wage and, when applicable, overtime. However, a student or intern may sometimes participate in an internship without being considered an employee under the FLSA.
The U.S. Department of Labor discusses this issue in Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act.
Courts generally apply what is known as the “primary beneficiary test.” Rather than relying solely on the title given to the relationship, the test looks at its economic reality and asks, essentially: Who is the primary beneficiary of the internship—the student or the business?
The Department of Labor identifies seven considerations, including:
Whether the intern and employer clearly understand that there is no expectation of compensation;
Whether the internship provides training similar to what the student might receive in an educational environment;
Whether the internship is connected to the intern's formal education, such as through coursework or academic credit;
Whether the internship accommodates the student's academic commitments and calendar;
Whether the internship lasts only as long as it continues to provide beneficial learning;
Whether the intern's work complements rather than replaces the work of paid employees while providing significant educational benefits; and
Whether both sides understand that the internship does not guarantee a paid job afterward.
No single factor automatically decides the issue. The circumstances of the particular internship matter.
If the intern is actually an employee under the FLSA, federal minimum-wage and overtime requirements may apply.
A note about our practice: Tucson Trademarks does not practice employment law, and this article is not intended to provide advice about whether a particular internship complies with federal or Arizona wage-and-hour laws. Businesses considering unpaid internship programs should consult an employment attorney when appropriate.
So why are we talking about internships on a trademark and intellectual property website?
Because whether you have to pay someone and whether you own what that person creates are not the same question.
And that second issue can create major problems for small businesses.
Your Intern Just Created Something Valuable. Who Owns It?
Consider a fairly ordinary situation.
A Tucson business brings on a college student for a summer internship. During the internship, the student:
takes photographs for the company's website;
creates Instagram and TikTok videos;
designs promotional graphics;
writes website copy;
develops a new brochure;
creates illustrations;
helps redesign product packaging; and
designs a new company logo.
By the end of the summer, the intern may have created dozens—or hundreds—of pieces of content that the business is actively using.
The owner may naturally assume:
“They created it for my business, so my business owns it.”
That assumption can be dangerous.
Copyright law does not necessarily determine ownership based simply on who requested the work, who paid for it, or whose business ultimately used it.
Paying for Creative Work Doesn't Necessarily Mean You Own the Copyright
As a general rule, copyright initially belongs to the author or authors of an original copyrightable work.
There are important exceptions, including the federal copyright doctrine known as “work made for hire.”
For qualifying employees, a work created within the scope of employment may be considered a work made for hire, with the employer treated as the author for copyright purposes.
But the rules become significantly more complicated when the creator is not an employee.
Federal copyright law has specific requirements governing when certain specially ordered or commissioned works can qualify as works made for hire. Simply putting the words “work for hire” on an invoice—or assuming that paying someone makes the work yours—does not necessarily resolve copyright ownership.
This is why intellectual property agreements and written copyright assignments can be so important.
And internships can make the issue particularly interesting because the legal nature of the relationship itself may not always be obvious.
An Example: Your Intern Creates Your Social Media Content
Imagine that a locally owned Tucson restaurant brings on a college student to help with marketing.
During the summer, the intern photographs menu items, films behind-the-scenes videos, creates Instagram graphics, develops a series of short-form videos, and writes content for the restaurant's website.
The restaurant posts all of it.
The internship ends.
Six months later, the restaurant is still using those photographs and videos in advertising.
Now imagine that a disagreement develops between the former intern and the business.
The former intern claims ownership of the photographs and videos.
The owner responds:
“But you created those for us.”
That may be relevant, but it doesn't necessarily answer the copyright question.
The business may now need to determine the creator's legal status, whether particular works qualify as works made for hire, whether any written agreement exists, whether copyright was assigned, and exactly what rights each party possesses.
That is not a great time to start looking for paperwork.
These questions are much easier to address before the creative work begins.
What If the Intern Designs Your Logo?
Here's another scenario that can be particularly confusing.
Suppose your intern designs a fantastic new logo for your business.
You love it.
You put it on your storefront. You print it on shirts. You add it to your website and social-media accounts. You use it on packaging and advertisements.
Eventually, you decide to apply for federal trademark registration.
Now there may be two separate intellectual property issues involved.
Trademark Rights
Trademark law protects words, names, symbols, designs, and other indicators that identify the source of goods or services.
Your business's use of the logo as a brand identifier may create trademark rights, and federal registration may provide significant additional benefits.
Copyright Rights
The artistic design of the logo may also contain copyrightable authorship.
Copyright and trademark are different areas of intellectual property law. Consequently, the fact that a business has trademark rights in a logo does not necessarily answer every question about copyright ownership in the underlying artwork.
This distinction is particularly important when businesses hire—or bring on as interns—graphic designers, photographers, videographers, website developers, marketing professionals, and other creative contributors.
What Else Might an Intern Create That Raises IP Issues?
For modern businesses, intellectual property extends far beyond a company name and logo.
An intern might create:
Photographs. Product photography, employee headshots, event photographs, or images used on your website.
Videos. Reels, TikToks, YouTube videos, advertisements, tutorials, or other marketing materials.
Written content. Blog posts, website copy, training manuals, ebooks, guides, newsletters, or advertising copy.
Graphic designs. Social-media graphics, brochures, advertisements, illustrations, packaging, or website elements.
Educational materials. Courses, presentations, worksheets, videos, manuals, or training programs.
Software or digital materials. Code, website elements, databases, or other technology-related work.
For some businesses, these materials eventually become valuable assets in their own right.
That makes ownership worth addressing from the beginning.
Intellectual Property Isn't the Only Issue
Ownership isn't necessarily the only concern when an intern works inside your business.
Interns may gain access to:
customer or client information;
pricing information;
marketing strategies;
product-development plans;
passwords;
social-media accounts;
unpublished creative materials;
internal processes;
vendor information; or
other confidential business information.
Depending on the business and circumstances, appropriate agreements may address confidentiality, access to company information, ownership of intellectual property, use of preexisting materials, return of company property, and what happens to accounts and credentials when the relationship ends.
This becomes especially important when an intern has direct access to a company's social-media or digital-marketing platforms.
If your intern is the only person who knows the password to your TikTok account, you have more than an internship issue—you have a business-continuity problem.
What Should an Internship Agreement Address?
There is no single agreement that is appropriate for every internship.
A student spending a semester observing professionals and receiving educational instruction presents very different issues from an intern spending 20 hours per week photographing products, designing advertisements, and managing a company's social-media presence.
Depending on the circumstances, a written agreement may need to address matters such as:
the nature and purpose of the internship;
expectations concerning compensation;
the anticipated duration of the internship;
educational objectives;
scheduling and academic commitments;
confidentiality;
intellectual property ownership;
copyright assignments;
use of materials the intern created before the internship;
ownership and control of business accounts;
passwords and account access;
use of the company's trademarks and branding;
return of business information and property; and
expectations when the internship concludes.
Importantly, a contract cannot simply make an unlawful arrangement lawful by giving it a particular label. Calling someone an “unpaid intern” in an agreement does not necessarily make that person an unpaid intern under the FLSA.
Likewise, intellectual property provisions should reflect the actual work being performed and the rights the business needs.
Don't Wait Until Someone Leaves to Figure Out Who Owns Your Intellectual Property
Small businesses often think about intellectual property when they are preparing to file a trademark application.
But good intellectual property planning starts earlier.
Ask:
Who is creating the assets my business relies on?
Then ask:
Do we actually own the rights we think we own?
Those questions can apply to interns, employees, independent contractors, photographers, graphic designers, marketing agencies, web developers, and other creative professionals.
The issue can become particularly important when a business is preparing to:
apply for trademark registration;
register important copyrights;
license its content to someone else;
franchise its business;
bring in investors or partners;
expand into new markets;
enforce its intellectual property rights; or
sell the business.
Imagine trying to sell a company only to discover that no one can confidently establish who owns the logo, photographs, videos, or other content that makes up the brand.
Cleaning up intellectual property ownership after years of informal arrangements can be much harder than addressing it correctly at the beginning.
A Little Planning Can Prevent a Much Bigger IP Problem
Internships can provide meaningful educational experiences for students while giving businesses an opportunity to mentor future professionals. But business owners should not assume that using the word “intern” resolves the legal questions surrounding the relationship.
For a for-profit business, there may be employment-law questions about whether the internship can legally be unpaid. Those questions should be addressed with an attorney who practices employment law when necessary.
There may also be an entirely separate set of intellectual property questions.
Who owns the photographs?
Who owns the videos?
Who owns the website copy?
Who owns the graphics?
Who owns the logo?
And does your business have the written agreements necessary to establish those rights?
Those are questions worth answering before the relationship ends—and preferably before the work is created.
Protecting Your Tucson Business's Brand and Creative Assets
Tucson Trademarks helps entrepreneurs and small-business owners in Tucson, Pima County, and throughout Arizona identify, protect, and manage their intellectual property.
Attorney Amanda Bynum assists businesses with matters involving trademarks, copyrights, licensing, intellectual property agreements, and ownership of creative assets.
If employees, interns, independent contractors, photographers, designers, or marketing professionals are creating valuable content for your business, an intellectual property review can help identify potential ownership issues before they become disputes.
And if you're building a new brand, it may also be the right time to determine whether your business name, logo, or other trademarks are ready for federal registration.
Your brand is more than your business name. Make sure your business owns and protects the assets it is building.
This article provides general educational information and is not legal advice. Tucson Trademarks/AJB Law Firm, LLC does not provide employment-law representation. Questions concerning compliance with the Fair Labor Standards Act, Arizona wage laws, or the legality of a particular internship arrangement should be directed to an attorney who practices in the applicable area of employment law. Intellectual property rights and ownership are fact-specific, and reading this article does not create an attorney-client relationship.
