This article may be read in conjunction with 2 previous articles and 1 subsequent article:
There will also be a forthcoming relevant article on Copyright Assignments.
Common misconception: whoever hires or pays someone to create a work owns the work.
As with most things in life, it’s more complicated that that. Works for hire are determined by the relationship between the parties.
There are 2 parts to the “work for hire” doctrine:
- Employee works
- Independent contractor works
This distinction arose out of the 1989 case, Community for Creative Non-Violence v. Reid, 490 U.S. 730.
§101 of the Copyright Act states that if your boss has you create a work and doing so is within the scope of your employment – then your boss is considered the “author” of the work, and your boss owns the copyright.
Note that there is no requirement for any signed, written agreement for employee-created works for hire.
So if the work is created within the scope of employment – the employer owns the work, unless there is a signed, written agreement otherwise.
Example: As part of her job, Marcie, an employee of Company’s human resources division, creates from scratch an interactive training manual for Company’s marketing staff.
Even though Marcie created the manual herself, Company is considered the author, and Company owns the copyright in the manual (unless Marcie and Company signed an agreement to the contrary).
Example: Debbie, a copy-editor at Fine Living Magazine, paints watercolors in her free time.
The work for hire rule does not apply to Debbie’s watercolors. If Fine Living wants ownership of the watercolor copyrights, it must get an assignment of rights from Debbie.
It is not always easy to determine if there is an employer-employee relationship in place, but the court in CCNV v. Reid has laid out some factors to help determine this.
Before I list the factors - think of them this way:
The closer the situation is to regular, salaried employment – the more likely it is that a work created within the scope of that employment will be considered a work made for hire.
The central issue here is "control."
If the hirer only has control over the outcome – it is less likely that there is an employment relationship in place for the purposes of the work for hire rule.
If the hirer has control over the method of creating the work, it is more likely there is an employment relationship.
The following are the factors used in determining "ontrol. Of course, these factors are not exhaustive.
- source of the equipment used
- location of the work
- duration of the relationship
- hiring party’s right to give more projects to hired party
- hired party’s control over work hours
- method of payment
- tax treatment of hired party
- hired party’s ability to hire & pay assistants
- if work is part of regular business for hiring party
- employee benefits
Examples of works for hire created in an employment relationship include:
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.
Since there is no precise standard for determining whether or not a work is made for hire under the "employee" section of the definition, consultation with an attorney for legal advice may be advisable.
Here is the general rule:
If you get hired or commissioned to create a work in a "one-off" deal, the hirer/commissioner is considered the author & owns the copyright – only if there is a signed, written agreement by both you and the hirer that the work is a “work for hire.”
For this to apply, however, the commissioned work must fall into 1 of 9 categories:
- contribution to a collective work
- part of a motion picture or other audiovisual work
- supplementary work
- instructional text
- answer material for a test
A “supplementary work” is a work prepared for publication as a supplement to another’s author’s work, such as an introduction, conclusion, illustration, explanation, revision, comment, foreword, afterword, map, chart, table, musical arrangement, bibliography, appendix or index.
An “instructional text” is a literary, pictorial or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
How does all this apply in the real world?
Consider yet another hypothetical...
English Professor at State University wants to create interactive online course materials for his American Literature 201 class.
State University has offered its computer center for tech support, as well as a $5,000 funding grant.
English Professor has enlisted the aid of Graduate Student from the technology department to help with programming.
Additionally, English Professor has hired his friend, Graphic Artist, to create several images for the interactive course materials.
However, in this situation, multiple people/entities are collaborating. Thus, this is a “joint owner” situation.
Here's the general rule for determining joint ownership:
The course materials will be jointly owned by each person
who contributes “copyrightable expression” if, at the time the work is created,
they expect their contribution to be merged into a unified whole and they
intend to be joint owners.
This means that English Professor, State University, Graduate Student and Graphic Artist could all be joint owners of the course materials if they all intend that result.
As you might imagine, neither State University nor English Professor are likely to be pleased to learn that Graduate Student and Graphic Artist may be joint owners in the course material.
But what about “works for hire”?
Could the contributions of English Professor, Graduate Student or Graphic Artist be considered works for hire for State University?
Because English Professor is State University’s employee and is creating the course materials as part of his job there, it is likely that his contributions will be considered “within the scope of his employment.”
Thus, English Professor’s contributions will likely be owned by State University as an employee work for hire.
If Graduate Student is employed by State University and assisting in the creation of the course materials is within the scope of her employment, her contributions would likewise likely be owned by the University as an employee work for hire.
The Graphic Artist’s situation is slightly different.
Her illustrations are probably not works for hire.
She is not a State University employee creating works within the scope of her employment – so that definition is out.
She was specially commissioned to do the images, which may or may not fall into 1 of the 9 categories.
Most importantly, however, there was no signed, written contract – either with State University or with English Professor.
This means she will be considered a joint owner if (1) she is contributing copyrightable expression; (2) she intends that the images be merged into the unified work; and (3) she and English Professor both intend that she is a joint owner.
Points 1 & 2 are likely met, but it is highly unlikely that English Professor intended Graphic Artist to be a joint owner.
It would have been best if English Professor had Graphic Artist sign a Work For Hire Agreement before the fact. This would have made English Professor the “author” of Graphic Artist’s images from the outset.
Failing that, though, English Professor should clarify the situation after the fact by having Graphic Artist sign a copyright assignment.
A copyright assignment can be signed at any time to transfer the copyright from the author/artist to someone else.
A quick note on foreign copyright law – the work for hire rule discussed above applies to U.S. copyrights.
Many foreign countries follow similar rules in terms of employer’s rights to employee-made works. However, U.S. work for hire law regarding commissioned works may not “translate” (pardon the pun).
Thus, to make sure you have international copyright protection, especially for commissioned works, you should have the copyright in the work assigned to you.
Finally – how long does a copyright last for a work for hire?
The term of copyright protection of a work for hire is 95 years from the date it is published or 120 years from the date is is created – whichever expires first.
Note – a work NOT made for hire is usually protected for the life of the author plus 70 years.
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