Work Made for Hire
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Work Made for Hire by Employee
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So, who is considered to be an "employee" for purposes of copyright law? This probably seems like a pretty straightforward question. We all know (or at least think we know) the definition of an employee, right? Well, it turns out that this question went all the way to the United States Supreme Court in the case Community for Creative Non-Violence v. Reid, 490 U.S. 730, (1989). This is because it’s not always clear as to who is an "employee" for purposes of copyright law.

In short, the key to whether an individual is an employee or not rests in how much control an employer has over an individual. The more control that the employer has over the individual the more likely that the individual is an employee. This “control” includes such things as the employer’s control over the individual’s work, schedule, assignments, pay, and many other aspects. In particular, the court listed numerous factors to take into consideration, including but not limited to:
  • the extent of the individual’s discretion over how to work
  • the duration of the relationship between the parties - temporary vs. long-term
  • whether the individual has the right to assign additional projects to others or must get the employer’s approval
  • the individual’s role in hiring and paying assistants
  • whether the work is part of the regular business of the employer
  • whether the employer is in business
  • whether any employee benefits are granted by the employer to the individual
  • the tax treatment of the individual
  • the location of the work
  • the skills required
  • the tools used
  • Etc.
See, Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). As you can see, whether an individual is an "employee" is fact specific – it depends on the nature of the relationship between the employer and individual. So, where does this leave the regular, salaried individual on a 9-5 daily work schedule? Well, it’s most likely that this individual would be characterized as "employee" under the "work made for hire" concept. That’s because the employer likely controls most of the individual’s work, and meets many of the other factors which indicate the person is an "employee."

If a person is considered to be an "employee" for copyright purposes, what does this mean? It means that any work created by that employee within the scope of his or her employment is automatically owned by the employer! So, this is a 2 step analysis, in which you must first ask (i) whether the individual is an employee, and (ii) if the individual is an employee, was the work created within the scope of his or her employment. If both of these answers are "yes," then the employer will own the copyright to the work without having to do anything else! Let’s go over an example to illustrate how this works.

Work Made for Hire Example - Tom the Writer

Assume that Tom works as a writer for the Lincoln Herald News. Tom works 9 – 5 Monday through Friday and he drives to the office each day for work. Tom’s employer, the Lincoln Herald News, asks Tom to write featured articles for the newspaper. The articles that Tom writes while in the office on behalf of the newspaper will be owned by the Lincoln Herald News. However, if Tom decides to write articles on his own (perhaps on weekday nights or weekends), Tom will own the copyright to those articles. Ok, so this should seem simple enough. But what if Tom decides to write a spin-off of an article for himself that was an article he originally wrote for the newspaper? Who owns that copyright? In short, it depends. At this point, it may be beneficial to seek the advice of a copyright lawyer.

NOTE: If an employer creates an agreement with an individual as a "work for made for hire," that agreement could impose upon the employer obligations relating to issues such as state worker's compensation coverage, unemployment compensation, and other employee-like benefits. In other words, an employer may accidentally trigger employment issues by creating a work made for hire agreement. Therefore, it’s often a good idea to seek the advice of a lawyer for these issues.

Next, we’ll go over works made for hire by independent contractors.