Works Made For Hire—Who Owns What You Created?
What is a “work made for hire” and when does it apply? Generally, the person who creates a copyrightable work1 is considered the work’s owner and author, unless the work is a considered a “work made for hire.”2 In this case—barring a signed, written agreement to the contrary—the work’s author and owner is the employer or other person/entity for whom the work was prepared.3
Why Does This Matter?
For one, the rights normally available to a creator in and to a work do not apply to works made for hire. For example, the creator does not have the exclusive rights afforded under Section 106 of the Copyright Act, unless the employer or other person/entity that requested the work for hire grants the creator an assignment or license. Furthermore, copyright law provides for terminating transfers of rights in a work after a period of years, but this right is not available in connection with works made for hire.4
Additionally, the duration of copyright for a work made for hire created on or after January 1, 1978 (the effective date of the Copyright Act of 1976) could be longer than for a work created and owned by a single or joint authors. Copyright in a work made for hire lasts “95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first,”5 whereas copyright in a work created by a single or joint authors endures for the life of the author (or last surviving author) plus 70 years.6
Therefore, it is important for those creating a work to know whether it will be considered a work made for hire under copyright law.
What Exactly is a "Work Made For Hire"?
A “work made for hire” is—
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned for use as . . . [one of nine specified categories of specially ordered or commissioned works], if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.7
Of course, because this is copyright law, there is nuance to both (1) and (2) above.
Employee Status
The 1976 Act does not define “employee,” but the Supreme Court has held that “[t]o determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor."8 The Court provided a non-exhaustive list of factors to consider when making such a determination. These are:
The hiring party's right to control the manner and means by which the work is accomplished;
The skill required to create the work;
The source of the instrumentalities and tools used to create the work;
The location where the work is created;
The duration of the relationship between the parties;
Whether the hiring party has the right to assign additional projects to the hired party;
The extent of the hired party's discretion over when and how long to work;
The method of paying the hired party;
The hired party’s role in hiring and paying assistants;
Whether the work is part of regular business of the hiring party;
Whether the hiring party is in business;
Whether the hired party is receives employee benefits;
The tax treatment of the hired party.9
It is important to note that “[n]o one of these factors is determinative,”10 and when applying the Reid test, courts tend to “weigh[the factors] according their significance in the case."11
Scope of Employment
The 1976 Act does not define “scope of employment,” either. Consequently, courts apply the following three-prong test to determine whether the conduct giving rise to the copyrightable work occurred within the scope of employment:
the conduct is of the kind [the employee] is employed to perform;
the conduct occurs substantially within the authorized time and space limits; [and]
the conduct is actuated, at least in part, by a purpose to serve the [employer].12
Meeting each of these means the work was created within the scope of the employee’s employment.
Independent Contractors
If a work is not created by an employee within that employee’s scope of employment, then that work will not be considered a work made for hire unless it meets the following three requirements:
the work must be specially ordered or commissioned;
the work must be for use as one of nine categories of works (specified below); and
the parties expressly agree in a written instrument they have both signed that the work shall be considered a work made for hire.13
This test is particularly relevant for independent contractors creating copyrightable works for others.
Specially Ordered or Commissioned Works
To be a specially ordered or commissioned work, the hiring party must be the “motivating factor” in the work’s creation, but “need not possess or exercise artistic control over the product for a work to be ‘specially ordered or commissioned.’”14
Nine Categories of Works
To be a work made for hire, a specially ordered or commissioned work must be for use as one of nine categories of works. These are:
a contribution to a collective work15
a part of a motion picture16 or other audiovisual work17
a translation
a supplementary work18
a compilation19
an instructional text20
a test
an answer material for a test
an atlas21
A work that does not fit into one of the above categories is not a work made for hire, and as such, the creator is the work’s owner and author. Accordingly, the parties would need to enter into an assignment or license agreement for the hiring party to have rights to the work.
Written Agreement
Even if a specially ordered or commissioned work falls into one of the enumerated categories, it will not be considered a work made for hire unless “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”22
But because courts currently disagree as to whether the agreement must exist before a work’s creation or may be executed afterwards,23 it is advisable for parties to execute the written agreement before a work is created to avoid issues down the road.
Examples
The Copyright Office offers the following examples, as further context to the above:
Work created by an employee acting within the scope of employment
Work For Hire: Kir Royale Records is in the business of producing classical music recordings. Stefan Brooks is a sound engineer who works for Kir Royale from time to time. Stefan performs all of his work at the company’s studio using the company’s sound mixing equipment. His supervisor closely monitors his job performance and evaluates the quality of his work. Stefan is paid an hourly wage and he receives no employee benefits. The recordings that he produces for Kir Royale Records are considered works made for hire.24
Work created by an individual not acting within the scope of employment
Not Work For Hire: John Bellevue is a staff composer for SoundTrax, Inc., a company that produces music for motion picture studios. While on a leave of absence, John wrote a song called “Saturdays Are the Best” to celebrate his son’s birthday. Although John is a fulltime employee of SoundTrax, he did not create this song as part of his regular duties. Therefore, the song is not a work made for hire.25
Works created by an Independent Contractor
Work For Hire: Lighthouse Books Inc. is the author of a textbook. The company hired Nous Traduisons Inc. to translate this work from English into French. Before Nous Traduisons began working on this project, the parties signed a written agreement stating that Nous Traduisons would translate the textbook for Lighthouse Books as a work made for hire. The work satisfies the second part of the statutory definition, because a translation is one of the nine categories of works that may be specially ordered or commissioned and because the parties signed a written agreement specifying that the work would be created for Lighthouse Books as a work made for hire.26
Not Work For Hire: Monkey Business Inc. hired Heath Liszewski to create the design for a new line of wallpaper. Heath is not an employee of Monkey Business; he is an independent contractor who was paid a flat fee for his work on this assignment. Although the parties signed a written agreement specifying that Heath would create this work for Monkey Business, it does not satisfy the second part of the definition because two-dimensional artwork is not one of the nine categories of works that may be specially ordered or commissioned as a work made for hire.27
Have a Work For Hire Question?
If you are an employer, commissioning party, or independent contractor interested in ensuring or determining whether a copyrightable work is a work made for hire, please contact us to learn how we can help you.
[1] The Copyright Act of 1976 protects “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “works of authorship” protected by copyright include such things as literary works, movies, music, and art, see id., and the exclusive rights afforded a copyright owner by this protection consists of those enumerated in 17 U.S.C. § 106. Though copyright exists as soon as the work of authorship is fixed in a tangible medium, such registration has many benefits. For more information, see our blog post here.
[2] 17 U.S.C. § 201(a)-(b).
[3] Id. § 201(b).
[4] See id. § 203(a)(3).
[5] Id. § 302(c). Note that this blog post only discusses works made for hire under the Copyright Act of 1976.
[6] Id. § 302(a)-(b). In the case of joint works, duration is measured from the death of the last surviving author. Id. § 302(b).
[7] Id. § 101.
[8] Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 750-51 (1989).
[9] See id. at 751-52.
[10] Id. at 752.
[11] Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir. 1992).
[12] Molinelli-Freytes v. Univ. of P.R., 792 F. Supp. 2d 150, 159 (D.P.R. 2011).
[13] 17 U.S.C. § 101.
[14] Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 562 (2d Cir. 1995).
[15] “A ‘collective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101.
[16] “‘Motion pictures’ are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” Id.
[17] “‘Audiovisual works’ are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” Id.
[18] “[A] ‘supplementary work’ is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes.” Id.
[19] “A ‘compilation’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term ‘compilation’ includes collective works.” Id.
[20] “[A]n ‘instructional text’ is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.” Id.
[21] Id.
[22] Id.
[23] Compare Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 559 (2d Cir. 1995) (written agreement may postdate creation if confirming a prior explicit or implicit agreement), and TMTV, Corp. v. Mass Prods., Inc., 345 F. Supp. 2d 196, 206-07 (D.P.R. 2004), with Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir. 1992) (written work-for-hire agreement must precede creation of work), and Est. of Kauffmann v. Rochester Inst. of Tech., 932 F.3d 74, 75, 78-79 (2d Cir. 2019) (limiting application of Playboy’s holding to instances of similar “special circumstances”).
[24] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 506.2 (3d ed. 2021), https://www.copyright.gov/comp3/chap500/ch500-identifying-works.pdf.
[25] Id.
[26] Id. § 506.3.
[27] Id.
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