(Art Credit: Andrea Hernandez)

If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual. The concept of “work made for hire” can be complicated. Let’s break it down and you’ll be better equipped with important knowledge to protect yourself and your work.

Fundamental Concept of Copyright

The Copyright Office has created guides on various topics: Their guide on “Works Made for Hire” is a helpful starting point. It sums up the fundamental concept of copyright nicely:

Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving rights from the author can rightfully claim copyright.

As stated in the Copyright Office’s “Copyright Basics (Circular 1),” as a copyright owner, you have the right to reproduce the work, create derivative works, distribute copies of the work, perform the work publicly, and display the work publicly.

You also have the right to transfer copyright ownership in whole or in part, license other people to use the work, and sue for infringement.

Works Made for Hire Under the Copyright Act

The person who creates a copyrightable work is the author of that work and, therefore, the copyright owner. The one exception to this rule is any “work made for hire.” Section 101 of the Copyright Act provides definitions of the key terms in copyright law. It defines a “work made for hire” as:

1. a work prepared by an employee within the scope of his or her employment

or

2. a work specially ordered or commissioned for use:

• as a contribution to a collective work
• as a part of a motion picture or other audiovisual work
• as a translation
• as a supplementary work
• as a compilation
• as an instructional text
• as a test
• as answer material for a test
• as an atlas

if the parties expressly agree in a written instrument signed by them that the

work shall be considered a work made for hire.

Even though the parties may call it a work for hire, this does not mean the employer or hiring party is the author.

Employees

For employees, other factors like the relationship of the parties and the true scope of the employment are considered.

Employee or Independent Contractor?

Courts are carefully scrutinizing arrangements to determine if individuals are employees or independent contractors. As addressed in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166, (1989), some factors to consider include:

• the hiring party’s right to control the manner and how the product is accomplished
• who provided the necessary tools
• whether the hiring party may assign additional projects to the artist
• what control the hiring party has over the artist’s schedule
• how the artist is compensated

Independent Contractors

For independent contractors, if the work is specially ordered or commissioned for one of the nine specific uses and the parties expressly agree in a signed writing that it is a work made for hire, the hiring party will be considered the author and, therefore, the copyright owner. Establishing the relationship may include determining whose “instance and expense” the work was created, as discussed in Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011). If the work does not fit in the exception, the artist is the author and, therefore, the copyright owner.

Best Practice Approach

Parties may agree in writing that the artist owns the copyright in a work made for hire or the hiring party owns the copyright in a work that is not (or may not be) considered a work made for hire under the Copyright Act. However, because it isn’t always clear, it is best practice for the parties to sign an agreement which (1) states whether it is a work made for hire, (2) clearly states who owns the copyright, and (3) assigns the independent contractor’s rights to the work to the hiring party (if appropriate) if the work is not considered a work for hire under the Copyright Act.

Moral Rights

The Visual Artists Rights Act of 1990 (VARA), found in section 106(A) of the Copyright Act, gives authors of visual art the rights of “attribution and integrity” of a given work. Under the act, the author has the following rights (with some conditions):

• claim authorship of the work
• prevent the use of the author’s name on work they did not create
• prevent the use of the author’s name on any work that has been improperly distorted, mutilated, or modified
• prevent the intentional distortion, mutilation, or modification of their work
• prevent the destruction of a work of “recognized stature”

VARA does not protect works made for hire. But because a work may later be determined to be outside the work for hire construct, the author should decide whether they want to waive their “moral rights” to the work—and such a declaration should be included in an agreement.

Termination Rights

If a work is not a work for hire, the author can still assign the copyright but will keep the right to cancel the assignment after 35–40 years (note: the notice of termination must be served before the time elapses). The Copyright Office has more information about the Termination of Transfers and Licenses.

Disclaimer

The information in this guide is not legal advice and is not intended to be relied upon as legal advice. The guide highlights some essential concepts; it does not cover all the related rules, exceptions to the rules discussed, or the many different ways courts interpret them. Contracts law is very fact-specific. If you have a legal issue, you should not rely on this information and instead speak to an attorney.