Works Made For Hire
IPR Intellectual Property Rights, Books on works made for hire
Works Made For Hire under the 1976 Copyright Act
"Work made for hire" or "work for hire" ("WFH") is an exception to the principle that the person who creates a work is the author of that work. If a work is “made for hire,” the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual. "Work made for hire" is also known as corporate authorship. The employer may be a corporation or an individual.
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Introduction: Under the 1976 Copyright Act as amended (title 17 of the United
States Code), a work is protected by copyright from the time it is created in a fixed
form. In other words, when a work is written down or otherwise set into tangible form, the
copyright immediately becomes the property of the author who created it. Only the author
or those deriving their rights from the author can rightfully claim copyright.
Although the general rule is that the person who creates a work is the author of that
work, there is an exception to that principle: the copyright law defines a category of
works called “works made for hire.” If a work is “made for hire,” the
employer, and not the employee, is considered the author. The employer may be a firm, an
organization, or an individual.
To understand the complex concept of a work made for hire, it is necessary to
refer not only to the statutory definition but also to its interpretation in cases decided
by courts.
Statutory Definition: Section 101 of the copyright law defines a “work made for
hire” as:
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective
work, as a part of a motion picture or 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 parties expressly agree in a written
instrument signed by them that the work shall be considered a work made for hire. For the
purpose of the foregoing sentence, a “supplementary work” is a work prepared for
a publication as a secondary adjunct to a work by another author for the purpose of
introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer material for tests,
bibliographies, appendixes, and indexes; and an “instructional text” is a
literary, pictorial, or graphic work prepared for publication and with the purpose of use
in systematic instructional activities.
Determining Whether a Work Is Made for Hire
Whether or not a particular work is made for hire is determined by the relationship
between the parties. This determination may be difficult, because the statutory definition
of a work made for hire is complex and not always easily applied. That definition was the
focus of a 1989 Supreme Court decision (Community for Creative Non-Violence v. Reid, 490
U.S. 730 [1989]). The court held that to determine whether a work is made for hire, one
must first ascertain whether the work was prepared by (1) an employee or (2) an
independent contractor.
If a work is created by an employee, part 1 of the statutory definition applies, and
generally the work would be considered a work made for hire. IMPORTANT: The term
“employee” here is not really the same as the common understanding of the term;
for copyright purposes, it means an employee under the general common law of agency. This
is explained in further detail below. Please read about this at “Employer-Employee
Relationship Under Agency Law.”
If a work is created by an independent contractor (that is, someone who is not an employee
under the general common law of agency), then the work is a specially ordered or
commissioned work, and part 2 of the statutory definition applies. Such a work can be a
work made for hire only if both of the following conditions are met: (1) it comes within
one of the nine categories of works listed in part 2 of the definition and (2) there is a
written agreement between the parties specifying that the work is a work made for hire.
Employer-Employee Relationship Under Agency Law
If a work is created by an employee, part 1 of the copyright code’s definition of a
work made for hire applies. To help determine who is an employee, the Supreme Court in
CCNV v. Reid identified certain factors that characterize an “employeremployee”
relationship as defined by agency law:
1) Control by the employer over the work (e.g., the employer may determine how the work is
done, has the work done at the employer’s location, and provides equipment or other
means to create work)
2) Control by employer over the employee (e.g., the employer controls the employee’s
schedule in creating work, has the right to have the employee perform other assignments,
determines the method of payment, and/ or has the right to hire the employee’s
assistants)
3) Status and conduct of employer (e.g., the employer is in business to produce such
works, provides the employee with benefits, and/or withholds tax from the employee’s
payment)
These factors are not exhaustive. The court left un-clear which of these factors must be
present to establish the employment relationship under the work for hire definition, but
held that supervision or control over creation of the work alone is not controlling.
All or most of these factors characterize a regular, salaried employment relationship, and
it is clear that a work created within the scope of such employment is a work made for
hire (unless the parties involved agree otherwise).
Examples of works for hire created in an employment relationship are:
A software program created within the scope of his or her duties by a staff programmer for
Creative Computer Corporation.
A newspaper article written by a staff journalist for publication in the newspaper that
employs him.
A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.
A sound recording created by the salaried staff engineers of ABC Record Company.
The closer an employment relationship comes to regular, salaried employment, the more
likely it is that a work created within the scope of that employment would be a work made
for hire. However, since there is no precise standard for determining whether or not a
work is made for hire under the first part of the definition, consultation with an
attorney for legal advice may be advisable.
Who Is the Author of a Work Made for Hire?
If a work is a work made for hire, the employer or other person for whom the work was
prepared is the author and should be named as the author in Space 2 of the application for
copyright registration. The box marked “work-made-for-hire” should be checked
“yes.”
Who Is the Owner of the Copyright in a Work Made for Hire?
If a work is a work made for hire, the employer or other person for whom the work was
prepared is the initial owner of the copyright unless there has been a written agreement
to the contrary signed by both parties.
Effect on Term of Copyright Protection
The term of copyright protection of a work made for hire is 95 years from the date of
publication or 120 years from the date of creation, whichever expires first. (A work not
made for hire is ordinarily protected by copyright for the life of the author plus 70
years.) For additional information concerning the terms of copyright protection, request
Circular 15a “Duration of Copyright.”
Effect on Termination Rights
The copyright code provides that certain grants of the rights in a work that were made by
the author may be terminated 35 to 40 years after the grant was made or after publication,
depending on the circumstances. The termination provisions of the law do not apply to
works made for hire.
Work
for Hire Author Contract - Line by Line - Customizeable CD-Rom in Word Doc, Ready to Use
CD-Rom Edition by Aspatore Books
This CD-Rom features a standard work for hire author contract, in a ready to use and
customize Word document, that can be used for freelance writers, book deals, quotes, and
any other individuals that provide content for you or your company. The document is also a
great reference for what you should be signing as an author, and is a great template to
provide with your prospective partners. The work for hire contract covers items such as
indemnification, publishing guidelines, rights of use, expenses, ownership, copyright,
termination and other items that are critically important for every author or company
hiring freelance writers. The document is "ready to use" with blanks for you to
fill in to have a legally binding contract in very little time. The entire document is in
Word, so any part can be customized. Save yourself thousands in legal fees by using this
ready to use work for hire author contract.
