Question 7 – Can an Employer Create a "Work Made for Hire" with an Independent Contractor for Any Project?
No! The statute explicitly lists 9 categories where a "work made for hire" is allowed, including:
- as a part of a motion picture
- as a part of other audiovisual work,
- as a translation,
- as a supplementary work,
- as a compilation,
- as an instructional text,
- as a test,
- as answer material for a test, or
- as an atlas,
If the work does not fall within these 9 categories, the employer likely will need to find another legal way to obtain copyright ownership.
Question 8 – What Should Generally Be in an Independent Contractor Agreement?
It depends on the relationship between the employer and independent contractor. There are many different types of independent contractor agreements.
With that said, the agreement must meet the formal requirements of a contract with (i) an offer, (ii) acceptance, and (iii) consideration (e.g. money). The agreement should likely also contain, but is not limited to:
- the terms and conditions for the work to be done
- specific "work for hire" language (assuming the work falls within the 9 categories)
- warranties that the independent contractor’s work does not infringe upon any other third parties
- warranties that the material is not in violation of the law
- an indemnity provision that would protect the employer in case the independent contractor violated a law or copyright ownership of another
- how the work should be delivered to the employer
- miscellaneous provisions such as how to handle disputes, the binding effect of the contract, etc.
If you’re creating an independent contractor agreement for the first time, you may want to seek an attorney to assist you in the process.
Question 9 – What is the Difference Between "Work Made for Hire" and the "Fair Use" Doctrine under Copyright Law?
A "work made for hire" is when an individual creates a work that is owned by the employer, and the employer is legally referred to as the "author" of the work.
The "fair use doctrine" is a defense to copyright infringement. The "fair use doctrine" occurs when a copyright owner sues another person for allegedly violating that owner’s copyrighted works. This generally occurs when another person uses copyrighted material without the owner’s consent to the detriment of the copyright owner (e.g. the copyright owner loses money because of the infringement). Please read
"Fair Use Doctrine" and
"Fair Use Doctrine - Top 10 Misconceptions" for further details on the fair use doctrine in intellectual property law.
Next, we’ll go over the 10th and last question.