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Work Made for Hire - Top 10 Questions

Introduction

In this article, we’ll discuss 10 of the most common questions about the "work made for hire" doctrine under copyright laws. In short, under copyright law the person who creates a work is the author and owner of that work. However, there is an exception to this rule called a "work made for hire."

In a "work made for hire" situation, the employer and not the creator of the work becomes the owner. There are generally 2 ways in which a "work made for hire" occurs. First, an employee creates a work for the employer within the scope of his or her employment. Second, an independent contractor creates a work for an employer where there is a written agreement for a particular task to be completed.

Questions often arise as to when someone is considered an employee or independent contractor, how to legally allow the employer to own the employee’s or independent contractor’s work, etc. We’ll explore these questions and others in this article.

Next, we’ll go over work made for hire questions 1 through 3.

Questions 1 – 3

Question 1 – Do I Need a Written Agreement from a Person I Hire to Own the Copyright as a "Work Made for Hire?"

It depends on whether that person is an independent contractor or employee. If the person is an employee and creates the work within the course of his or her duties for you as the employer, then you do not need a separate written agreement. Just the fact that the person is an employee and you’re the employer is enough to grant you the copyright to the work (as long as the work is created in the course of employment for the employer).

If the person is an independent contractor, then you must have a written agreement granting you copyright ownership to the work. You’ll want to create a separate agreement or clause within the independent contractor agreement granting you, i.e. the employer, the exclusive rights to the works created by the independent contactor.

Keep in mind that the written agreement is a contract and must meet the 3 general principals of a contract, including (i) an offer, (ii) acceptance, and (iii) consideration (e.g. generally money). Also, the written agreement should be signed before any work is started. If you attempt to sign the agreement after work is begun, you may have to create an assignment agreement to own the work instead of a "work made for hire" agreement.

Question 2 – Who is the Author and Owner of a "Work Made for Hire?"

The author and owner of the work is the employer. An employer can be an individual, corporation, or other entity. The employer therefore holds the copyright to the work. The actual individual or individuals who created the work are not considered the authors or owners of the work under copyright law. However, the employer can always grant back certain rights or all the rights to the copyrighted work to the individuals that created the work.

Question 3 – What is the Difference Between an Employee and Independent Contractor for "Work Made for Hire" Purposes?

This question actually went all the way to the United States Supreme Court in the 1989 case Community for Creative Non-Violence v. Reid, 490 U.S. 730. The Court talked about how to determine if an individual is an "employee" or "independent contractor" for "work made for hire" purposes.

In short, the Court listed a number of factors to take into consideration in determining if an individual is an "employee" or "independent contractor." One of the key considerations is how much "control" an employer has over the individual and his or her work. The more control an employer has over an individual the more likely that individual is an employee, and not an independent contractor. However, there are many other factors to consider with no 1 factor as determinative. We recommend that you read "Work Made for Hire" for further details on this question and/or the US Supreme Court’s decision cited in this response.

Next, we’ll go over work made for hire questions 4 through 6.

Questions 4 – 6

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.

Questions 7 – 9

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.

Question 10

Question 10 – How Long Does Copyright Protection Last for a Work Made for Hire?

The length of copyright protection for a "work made for hire" is different than a copyrighted work created and owned by an individual.

95 years from the date of publication, OR
120 years from the date of creation
whichever ends first

Here, keep in mind that publication is different than creation. In particular, publication refers to when the work is published to the general market (often through the sale, licensing, or some other form to generate revenue). In contrast, creation is the date when the work is made.

Also, remember that an ordinary copyrighted work made and owned by an individual lasts for the life of the author (+) 70 years.

Finally, we’ll wrap up this article with some main points to keep in mind.

Conclusion

In this article, we covered some of the most common "work made for hire" questions. Now, you should have a better idea about how to deal with "work made for hire" situations.

With that said, work made for hire situations can be very fact specific, and it may require you to seek advice from a lawyer for your particular situation. In our digital age, work made for hire agreements and other forms of intellectual property agreements are very important. In fact, an improperly drafted "work made for hire" agreement could cost an employer thousands to millions of dollars. That’s why it’s always better to set up the agreement properly the first time.

Finally, if you haven’t read "Work Made for Hire," please do so for further details on this topic.