Definition of Work Made for Hire
Section 101 of the Copyright Act defines a “work made for hire” as “a work prepared by an employee within the scope of his or her employment; or 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…”
To sum up, a work made for hire is a work that is subject to copyright protection that was created as part of 1) an employer-employee relationship; or 2) a specially ordered or commissioned agreement with an independent contractor.
Employment Relationship
Usually, the fact that parties call their association that of employer-employee is sufficient to form an employment relationship under the Copyright Act. But sometimes one party will work for another without defining the relationship or the parties may term the work’s creator an independent contractor when in fact he or she is an employee.
The U.S. Supreme Court explained what constitutes a “work made for hire” under the Copyright Act in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). An employment relationship is likely to be found when:
- The employer has control over the work. For example, the employer determines where or how the work is done and/or provides equipment or other tools to create the work.
- The employer has control over the employee. For example, the employer controls the employee’s schedule, the employer provides the employer with other assignments, and/or the employer determines the method of payment.
- The relationship resembles a typical employment relationship. For example, the employer provides the employee with benefits and/or withholds tax from the employee’s payment.
However, this list is not exhaustive and no single factor is determinative. Examples of works made for hire under an employment relationship are:
- A newspaper article written by a staff journalist for publication in the newspaper that employs him
- A musical arrangement written for a record label by a salaried arranger on its staff
See Copyright Office Circular 9: Works Made for Hire Under the 1976 Copyright Act.
Independent Contractor/Specially Commissioned Work
The work created by an independent contractor remains owned and authored by such person by default. However, the parties may enter a written agreement whereby the content is instead owned and/or authored by the commissioning party. This is advantageous when the commissioning party may publish or edit (e.g., prepare a derivative work) the content initially developed by the hired party.
Examples of works made for hire under an independent contractor relationship are:
- A small business website created by a web designer/publisher
- A database software program written by a developer
Significance of Determination
Authorship
A work is protected by copyright from the moment it is created in a fixed form. It immediately becomes the property of the author, who is usually also the creator of the work. The author gains all rights to the work including the right to reproduce the work in copies, distribute copies of the work, and perform the work publicly.
The work made for hire doctrine is an exception to the general rule that the creator is also the work’s author. If a work is a work made for hire, the employer or commissioning party is considered the author and owner of the copyright. Copyright Act – Section 201(b). This should be reflected on the application for copyright registration.
Term of Copyright Protection
The general term of copyright protection is the life of the author plus 70 years. In the case of a work made for hire, the term is instead 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. Copyright Office FAQ – How Long Does Copyright Protection Last?.
Opportunity to Contract Out of Default Rules
The parties are able to freely contract to opt in or opt out of a work made for hire situation. Those in a valid employer-employee relationship may enter into an agreement whereby the employee who actually conceives and fixes the expression gains all copyright in the work. Alternatively, parties to an independent contractor/specially commissioned work agreement may specify which party will own the work created through this relationship. Finally, after a work is created, the rightful owner or author may transfer rights in the work through a copyright assignment.