Work Made for Hire
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Work Made for Hire by Independent Contractor
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If a person is not an "employee" for copyright purposes, then that person is likely an independent contractor. An independent contractor can be either an individual or entity and is not considered to be under the control of an employer. In other words, an employer orders or commissions out work to an independent contractor but does not generally control how that work is created.

So, how can an employer obtain copyright ownership of a work created by an independent contractor under the "work for hire" doctrine? Well, it takes more steps for an employer to obtain copyright ownership from an independent contractor than from an employee. If you recall, an employer will own the copyright to works created by employees within the scope of their employment. There’s nothing else needed with employees – no written agreement or additional payments. However, that’s not the case with independent contractors. An employer can only obtain copyright ownership under a work for hire agreement from an independent contractor if the following 2 requirements are met:

(1) There is a written contract agreement between the parties specifying that the work is a "work made for hire."
  1. This means all the elements of a contract must be satisfied, including consideration, e.g. the employer pays money to the independent contractor for the rights to the copyright.
(2) The work is created in 1 of 9 of the following situations:
  1. as a part of a motion picture
  2. as a part of other audiovisual work,
  3. as a translation,
  4. as a supplementary work,
  5. as a compilation,
  6. as an instructional text,
  7. as a test,
  8. as answer material for a test, or
  9. as an atlas.
Also, the work made for hire agreement between the employer and independent contactor should be made prior to the independent contractor beginning any work. Otherwise, the "work made for hire" agreement may fail. We’ll discuss why in more detail on the next page.

IMPORTANT NOTE: Many small businesses and employers fail to create written agreements with their independent contractors in work for hire situations. So, even if the employer pays money to the independent contractor for the work that does not mean the employer owns the copyright to the work! The employer must actually include the "work made for hire" language in a written agreement, and meet the other listed requirements to own the copyright to the independent contractor’s work.

Next, we’ll go over the differences between a work made for hire and copyright assignment.