If a copyrighted work is considered a work made for hire, the employer or other person for whom the work was made is deemed the owner of the copyright unless there has been a written agreement to the contrary signed by both parties. Therefore, it is important for employees and consultants to understand the meaning of a “work for hire.”
Section 101 of the copyright law 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.
The above definition must then be applied to the particular situation and the relationship between the parties. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held that to determine whether a work is made for hire, one must first establish whether the work was prepared by an employee or an independent contractor because this determination will influence how the above definition is applied.
If an employee creates a work, the first part of the statutory definition applies, and generally the work would be considered a work made for hire. Conversely, if a work is created by an independent contractor (as determined under the general common law of agency), then part two of the statutory definition applies. The work will only be considered 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.
To clarify the definition of work for hire, the U.S. Copyright Office offers the following examples:
- 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
How Can I Help?
Determining whether a work is made for hire often involves complex legal analysis. Therefore, I recommend consulting with an experienced copyright attorney such as myself.