Work Made for Hire - Top 10 Questions
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Questions 4 – 6
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Question 4 – If I Hire a "Traditional Employee," Paid on Salary, with Worker’s Benefits, and the Typical 9 – 5 Job, What Do I Need to do to Own that Worker’s Created Works?

First, it’s probably not technically correct to say you hired a "traditional employee." The definition of what is considered a "traditional employee" may differ substantially from one industry to another. The key is to evaluate each employee under the test created by the U.S. Supreme Court.

With that said, many (if not most) individuals with the "typical" salaried, 9 – 5 job, would be considered "employees" under copyright law. Therefore, the employer does not need a separate written agreement to own the works created by that individual within the scope of his or her employment.

The next issue is what is considered "within the scope of his or her employment?" This is also a fact specific inquiry. But generally speaking, if something is created by the individual within his or her working hours for the employer, that work will likely fall under the "work made for hire" doctrine. Still, there may be exceptions to this rule. If you’re unsure, it’s likely better to seek a lawyer’s advice.

Question 5 – Does a "Work Made for Hire" with an Independent Contractor Need to be in Writing?

Yes! It should be in writing or the independent contractor will usually also be the owner of the work.

Question 6 – What Happens if an Independent Contractor is also the Owner of the Work?

The employer cannot legally use or transfer (i.e. sell) that work without the independent contractor’s consent. This usually leads to the employer having to pay the independent contractor again for the copyrights to the work. This is because the original agreement between the employer and independent contractor did not explicitly grant the employer copyright ownership under the "work made for hire" doctrine.

As you can see, it’s much better for employers to properly set up their agreements with independent contractor prior to any work being done.

Next, we’ll go over questions 7 through 9.