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Copyright Law: Works Made for Hire

Copyright Law: Works Made for Hire

A copyright is a type of intellectual property protected under the Copyright Act. A copyright provides its owner the exclusive right to make copies of a creative work. However, a copyright protects the original expression of the creative work, not the idea itself. Examples of works often protected by copyrights include sound recordings, software programs, written works, and visual works.

The person who creates the work is usually deemed the author and owner of the work’s copyright. However, there is one crucial exception to this general principle know as “works made for hire.” If the creative work is made for hire, the hiring party is automatically deemed the author and owner of the work’s copyright, not the person who created the work, unless the parties agree otherwise.

When is a work a work made for hire?

Under the Copyright Act, a work can qualify as a work made for hire two different ways. The work is made for hire if it is

• created by an employee within the scope of the employee’s employment, or
• created by an independent contractor (e.g., freelancer) as a commissioned piece of work.

The first step in the work made for hire analysis is to determine whether the creator of the work is an employee or independent contractor. For further discussion of the employee-independent contractor distinction, check out our blog post Independent Contractors vs Employees: What’s the Difference?.

Works made for hire—employees

If the work was made by an employee, the next step is to determine whether the work was made within the scope of the employee’s employment. In making this determination, courts generally consider the following questions:

• Was the creation of the work the type of task the employee was hired to perform?
• Was the work created substantially within the workplace and work hours?
• Was the work created at least in part to serve the employer?

If the answer to all of these questions is “yes,” then the work is likely a work made for hire, and the employer owns the copyright.

Works made for hire—commissioned works by independent contractors

Not every work created by an independent contractor is automatically deemed a work made for hire. Like the employee analysis above, courts consider additional factors in making the independent contractor works made for hire determination. Works completed by an independent contractor are considered works made for hire when all of the following are met:

• The hiring party commissioned or specifically ordered the independent contractor to complete the work.

• The parties agreed in writing that the work is a work made for hire, or it is clear that the hiring party is the owner of the work (although the Copyright Act does not require that the agreement expressly include the phrase “work made for hire”).

• The created work falls into one of the nine qualifying work categories. The qualifying work categories include:

  • 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.

Regarding the qualifying work categories requirement, the parties’ agreement labeling the work as a specific type of work is not dispositive. Instead, courts will look at the work and objectively determine if it falls into one of the nine qualifying categories. For example, while photos are not mentioned as a qualifying work category, they may be considered a “contribution to a collective work” if they are used in a larger collection of photos (like an advertising catalog or magazine).

The work made for hire principle is complicated. Whether a work qualifies as a work made for hire can have many important legal implications—for artists and employers alike. Whether you are a freelance artist looking to retain the copyright for your creative work or a business looking to stop unlawful exploitation of a work you commissioned, the intellectual property law attorneys at McNeelyLaw are ready to help.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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