What is a work for hire under U.S. copyright law?

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The answer to the questions “Who owns my copyright?” and “Who holds the copyright to a work I created?” are far more complex than you might think. Copyrights are created when an original work becomes fixed in a tangible form, but sometimes it can be unclear who holds a given copyright. Usually, the person who generates the work is the copyright holder, but one exception to this rule is works made for hire or under a commission. If a work is created for hire, then it is the employer, be it a corporation or an individual, who holds the copyright rather than the employed creator. Under copyright law, work for hire generally includes:

  • Work created within the scope of employment OR
  • Work created under order or commission, including a variety of collaborative or collective works, if there is an express, written agreement between the parties.

Copyright law also includes a variety of case law beyond merely the statutory language, and Stone Law can help you determine whether your work falls under the “for hire” exception. The statutory definition is not suitable to all situations, and yours may be unique. Whether you are an employee or an employer, Stone Law can help you gain control of your work or draft an agreement for copyright licensing or copyrighted work for hire.

Just because you’ve paid to have a work created does not mean you hold the work’s copyright. No matter what you believe a contract says, if you have not consulted a skilled attorney, your copyright may be in jeopardy. A mere mutual agreement that a work is for hire is often not enough. As a result, you may only have an implied license to the work, and the creator may hold the copyright. In order to avoid this, you can have an attorney draft a suitable agreement between the parties. Alternatively, if you are creating work for others, an attorney can help you draft an agreement that will maintain your copyright while granting a license to another party. If you are looking to avoid being categorized as a work for hire, a skilled attorney can help determine if your agreement is binding. Some common mistakes can weaken or destroy a copyright agreement; for example, if your agreement was signed after the work began, it may not be valid. If you believe you may have a claim to a copyright created under employment, Stone Law is available to advocate for you in a copyright dispute, whether you are an employer or an employee.

Copyrights do not automatically transfer in every case if you are working for someone else. In the statute, the term employee differs from the common understanding. In CCNV v. Reid, 490 U.S. 730 (1989), the Supreme Court analyzed the employer-employee relationship under several factors, including:

  • The type of control an employer has over a work, including both physical and creative control
  • The type of control an employer has over an employee
  • The type of employer in question

These factors alone are not determinative, and the law is unclear which factors are required for an employer-employee relationship to result in works for hire.

If work is commissioned to an independent contractor, a written agreement is required and the work must fall under one of the statutory categories. If an independent contractor’s work does not fall within one of the nine categories in the statute, the work is not for hire and the contractor holds the copyright. What kinds of work by independent contractors are considered for hire? The nine categories covered by the statute include:

  • Contributions to a collaborative work
  • Parts of an audiovisual work (films, video games, etc.)
  • Translations
  • Supplemental works
  • Compilations
  • Instructional texts
  • Tests
  • Answer materials for tests
  • Atlases

Additionally, an independent contractor’s work must be specially commissioned and the parties must have a written agreement specifying expressly that the work is for hire. Given all these requirements, it is difficult to create an adequate written agreement for copyrights of for hire work, and skilled counsel can help you determine if you are bound by a given agreement. While standard, salaried employment is usually considered work for hire, your situation may be different. Consulting with an attorney, like the experienced copyright attorneys at Stone Law, can safeguard your interests as either an employer or an employee. Who holds the copyright to a given work depends on the circumstances, and it can be difficult to protect your rights without the help of an attorney. Contact us for copyright services including drafting for hire agreements.

If a work does not qualify as being for hire, then certain rights may still be granted to the hiring party. These granted rights can vary and may or may not be exclusive. Licenses can vary and cover a variety of situations and factors. If you want a license to cover a specific circumstance, you should consult an attorney. Stone Law can help you draft an express license to limit the rights granted for a given work.

If you are an employer under a for hire agreement, you may have special concerns, including certain obligations to your employee. You may be obligated to provide benefits or unemployment compensation to someone you hire to create a copyrighted work. Alternatively, if the creator you hired holds the copyright to a work, they may be able to revoke a license given to you even if you paid for it. It is also important to remember that the other party to your agreement may infringe on copyrighted material without your knowledge and expose you to litigation. An attorney can help you limit your risks when drafting an agreement for commissioned works tailored to your needs. Consulting with an attorney can be valuable to protect yourself and determine what rights and obligations you have under a given agreement.

This page is not intended as legal advice, and if you have a legal question, you should consult an attorney. Stone Law’s attorneys are available to help; contact us through this website or call us at 732-444-6303.