Works Made for Hire

An earlier post discussing copyright ownership briefly went into the rights and authorship associated with a “work made for hire.” This type of authorship is the exception to general rules of copyright ownership, and the original creator is not the author of the work, nor is he the owner of the copyrighted work. Whether a work is made for hire is decided by the facts that exist during the time the work was created.

The post also discussed the two situations in which this type of copyright ownership may arise. In the first situation, a work may be made for hire when the work is created by an employee in the course of his or her regular duties. Second, a work may be made for hire when a third-party contributor and a hiring party enter into a written contract that clearly states that the work is to be considered a “work made for hire” and the work is commissioned or specially ordered for use as a compilation, a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, an instructional text, a test, answer material for a test or an atlas.  This post will take a closer look at each of the two situations.

The first situation deals with works made for hire within the scope of employment. In this situation, for an employee’s work to be considered a work made for hire, it must fall within the employee’s scope of employment.  However, the Copyright Act does not define the terms “employee,” “employer” or “scope of employment.” Instead, in Community for Creative Non-Violence v. Reed (1989), the U.S. Supreme Court stated that Congress meant for these terms “to be understood in light of agency law.” This is the law that reigns over employer-employee relationships, and when determining if a work was made for hire, the courts should rely on the general common law of agency and not on particular state laws, as their meanings for these terms may differ.

In accordance with this decision, the Copyright Office set forth a series of questions that may be pertinent to consider: What skill was required to create the work? Where was the work created, and did the hiring party provide space, material or tools to create the work? How long was the relationship between the parties, and did the hiring party have the right to assign other projects besides the one under review? Could the hiring party direct the creator on when and how long to work? How was the creator paid, and did the hiring party offer employee benefits? Did the hiring party remove taxes from the creator’s pay? Does the creator have his or her own business, and was the creator able to hire and pay assistants? Was the work created as part of the regular business hours of the hiring party, and was the work created pursuant to the creator’s usual tasks? And finally, was the work created during the creator’s authorized work time?

The second situation handles scenarios involving a third-party contributor and a hiring party. In such situations, a work is considered a work made for hire if it meets the following four criteria: (1) The work must fall within the nine categories of works listed above that are eligible to be specially ordered or commissioned as works made for hire. (2) There must be a written agreement between the party that ordered or commissioned the work and individual(s) who actually created the work. (3) In the written agreement, the parties must expressly agree that the work is to be considered a work made for hire. (4) The agreement must be signed by all parties. If the work in question fails to satisfy any of the above criteria, it is not considered a work made for hire.

Copyright in works made for hire is different than in other copyrighted works, where the creator of an original work fixed in a tangible medium is automatically granted copyright under U.S. law.

Starting with the authorship of the work, as mentioned earlier, the authorship of a work made for hire is granted to the employer or hiring party of the commissioned work. Much like the authorship, copyright ownership of a work made for hire is instilled in the party that commissioned or special-ordered the work in question. However, this may not always be the case if the hiring party has entered into and signed a written agreement with the work’s creator stating the contrary. As discussed in the previous post, the duration of copyright for works made for hire is 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.

When registering a work made for hire with the Copyright Office, it is not the Office’s job to decide whether a work was made for hire. That responsibility falls on the registrant, who must make that decision based on the facts that existed during the time the work was created. Though the Copyright Office cannot provide legal advice about the status of a work, a questionnaire was created to help registrants decide whether or not a work that was created under the Copyright Act of 1976 qualifies as a work made for hire. The questionnaire can be found on the Copyright Office website along with the Compendium of U.S. Copyright Office Practices, from which the questions were derived.

Works made for hire are an exception to the general copyright rules, and there are two instances in which a work may be considered a work made for hire, either an employer-employee situation or in instances in which a third-party employer commissions or specifically orders a work to be created. In either scenario, there are certain criteria that must be met in order for a work to be considered made for hire. It is important to make an accurate decision in determining whether a work is a work made for hire because there may be unintended consequences associated with such a work. When a work is given this status, it affects its authorship, copyright ownership, duration, registration and termination.

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