What is a Work Made for Hire & Who Owns the Copyright?
Author: Karen Y. Kim
The owner of work and its copyright is typically the creator. Copyright law is pretty straightforward about this. But there are circumstances in which the creator of the work is not the owner. One such circumstance is when the work is a “work made for hire.”
Generally, a work made for hire is something that was created by an employee within the scope of her employment, or by an independent contractor who was hired to create the work, if certain conditions are met.
We often think of a person as an employee if they have a formal employment agreement and are given a salary. Whether someone is an “employee” is not as simple as money exchanging hands for work performed. A person can be considered an employee as long as she falls within the common-law principles of agency, which is to say the right to control the person and the work.
If a person is an employee, the employer will own any work that is done within the scope of her employment – as a regular part of the employee’s duties and for the direct benefit of the employer – automatically as a work made for hire. Works created by the employee on her own time or without the employer’s resources are probably not works for hire. To be safe, employers should include a clause in the employment agreement that defines “work for hire” and clearly states that such works for hire created by employees, and their copyrights, are owned by the employer.
If the creator of the work is an independent contractor, rather than an employee, then there must be a written contract specifying that the commissioned work is a work made for hire and the copyright is owned by the person or entity that commissioned the work. Additionally, the commissioned work must fall into one of the following categories:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas
A commissioned work that either isn’t specifically designated as a work made for hire in a written agreement or doesn’t fit into one of the nine categories above will not be considered a work made for hire. The work’s creator, and not the client who commissioned the work, will be its owner. To avoid this outcome, additional provisions should be added to the agreement stating that the creator agrees to assign any works deemed not to be works made for hire to the client.