A work made for hire is a work created by an employee as part of his or her
job, or some limited types of works where all parties agree in writing to
the WFH designation. Work for hire is a statutorily defined term, so a work for
hire is not created merely because parties to an agreement state that the
work is a work for hire. It is an exception to the general rule that the
person who actually creates a work is the legally recognized author of that
work. According to copyright law in the United States and certain other
copyright jurisdictions, if a work is "made for hire", the employer—not the
employee—is considered the legal author. In some countries, this is known as
corporate authorship. The entity serving as an employer may be a corporation or
other legal entity, an organization, or an individual.
Author accreditation in the US Accreditation has no impact on work for
hire in the US. The actual creator may or may not be publicly credited for the
work, and this credit does not affect its legal status. States that are party
to the Berne Convention for the Protection of Literary and Artistic
Works recognize separately copyrights and moral rights, with moral rights
including the right of the actual creators to publicly identify themselves
as such, and to maintain the integrity of their work.
For example, Microsoft hired many programmers to develop the Windows
operating system, which is credited simply to Microsoft Corporation. By
contrast, Adobe Systems lists many of the developers of Photoshop in its
credits. In both cases, the software is the property of the employing company.
In both cases, the actual creators have moral rights. Similarly, newspapers
routinely credit news articles written by their staff, and publishers credit
the writers and illustrators who produce comic books featuring characters such as
Batman or Spider-Man, but the publishers hold copyrights to the work. However,
articles published in academic journals, or work produced by freelancers for
magazines, are not generally works created as a work for hire, which is why
it is common for the publisher to require the copyright owner, the author,
to sign a copyright transfer, a short legal document transferring specific
author copyrights to the publisher. In this case the authors retain those
copyrights in their work not granted to the publisher.
Law in the United States The circumstances in which a work is
considered a "work made for hire" is determined by the United States
Copyright Act of 1976 as either (1) a work prepared by an employee
within the scope of his or her employment; or 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, or 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. The first situation applies only when
the work's creator is an employee, not an independent contractor. The
determination of whether an individual is an employee for the purposes of the
work made for hire doctrine is determined under the common law of
agency, in which a court looks to a multitude of factors to determine
whether an employer-employee relationship exists. In the Supreme
Court case affirming that the common law of agency should be used to distinguish
employees from independent contractors in the work for hire context, Community
for Creative Non-Violence v. Reid, the Court listed some of these factors:
In determining whether a hired party is an employee under the general common law
of agency, we consider the hiring party's right to control the manner and
means by which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source of the
instrumentalities and tools; the location of the work; 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 payment; the
hired party's role in hiring and paying assistants; whether the hiring party is
in business; the provision of employee benefits; and the tax treatment of the
hired party. See Restatement § 220(2)." On the other hand, if the work is
created by an independent contractor or freelancer, the work may be considered a
work for hire only if all of the following conditions are met:
the work must come within one of the nine limited categories of works listed
in the definition above, namely 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; the work must be specially ordered or
commissioned; there must be a written agreement
between the parties specifying that the work is a work made for hire by use of
the phrase "work for hire" or "work made for hire."
In other words, mutual agreement that a work is a work for hire is not enough.
Any agreement not meeting all of the above criteria is not a valid work for
hire agreement and all rights to the work will remain with the creator.
Further, courts have held that the agreement must be negotiated, though not
signed, before the work begins. Retroactive work for hire is not
permitted. When relying on agreements in which
creators transfer rights to a hiring party, a hiring party often finds that
it has only limited scope to alter, update, or transform the work. For
example, a motion picture may hire dozens of creators of copyrightable
works any one of which would require repeated agreements with the creators if
conditions for showing the film or creating derivatives of it changed.
Failing to reach agreement with any one creator could prevent the showing of the
film entirely. To avoid this scenario, producers of motion pictures and similar
works require that all contributions by non-employees be works made for hire.
On the other hand, a work for hire agreement is less desirable for creators
than a Copyright transfer agreement. Under work for hire, the commissioning
party owns all rights from the very start even if the contract is breached,
whereas under a transfer of rights, the creator can hold back the rights until
all terms of the contract are fulfilled. Holding back the rights can be a
forceful tool when it is necessary to compel a commissioning party to fulfill
its obligations. An author has the inalienable right to
terminate a copyright transfer 35 years after agreeing to permanently relinquish
the copyright. However, according to the US Copyright Office, Circular 9 "the
termination provisions of the law do not apply to works made for hire." These
restrictions, in both the work for hire doctrine and the right of termination,
exist out of recognition that artists frequently face unequal bargaining power
in their business dealings. Nonetheless, failure to secure a work-for-hire
agreement by commissioning organizations can create difficult situations. One
such example is the artist Raymond Kaskey's 1985 statue Portlandia, an
iconic symbol of the city of Portland, Oregon. Unlike most works of public art,
Kaskey has put strong prohibitions on the use of images of the statue, located
atop the main entrance to the famous Portland Building. He sued Paramount
Pictures for including shots of the statue in the Madonna motion picture
Body of Evidence. As a result, it is nearly impossible to film portions of
one of downtown Portland's most vibrant neighborhoods, and the city has lost out
on the potential to create merchandise and souvenirs from one of its most
iconic landmarks. An author can grant their copyright
rights to the hiring party. However, if not a work made for hire, the author or
the author's heirs may exercise their right to terminate the grant.
Termination of a grant cannot be effective until 35 years after the
execution of the grant or, if the grant covers the right of publication, no
earlier than 40 years after the execution of the grant or 35 years after
publication under the grant. The application of the law to materials
such as lectures, textbooks, and academic articles produced by teachers
is somewhat unclear. The near-universal practice in education has traditionally
been to act on the assumption that they were not work for hire.
Where start-up technology companies are concerned, some courts have considered
that the traditional factors for finding that an author is an "employee" can be
less important than in more-established companies, for example if the employee
works remotely and is not directly supervised, or if the employee is paid
entirely in equity without benefits or tax withholding.
= Work for hire amendment = In 1999, a work for hire related
amendment was inserted into the Satellite Home Viewer Improvement Act of
1999. It specified that sound recordings from musical artists could be
categorized as works for hire from the recording studios.
= Employer–employee relationship under agency law =
If a work is created by an employee, part 1 of the copyright code’s
definition of a work made for hire applies. To help determine who is an
employee, the Supreme Court in CCNV v. Reid identified certain factors that
characterize an "employer-employee" relationship as defined by agency law:
Control by the employer over the work Control by employer over the employee
Status and conduct of employer Copyright duration
In the United States a "work for hire" receives copyright protection until 120
years after creation or 95 years after publication, whichever comes first. This
differs from the standard U.S. copyright term, life of the author plus 70 years,
because the "author" of a work for hire is often not an actual person, in which
case the standard term would be unlimited, which is unconstitutional.
Works published prior to 1978 have no differentiation in copyright term
between works made for hire and works with recognized individual creators.
In the European Union, even if a Member State provides for the possibility of a
legal person to be the original rightholder, then the duration of
protection is in general the same as the copyright term for a personal copyright:
i.e., for a literary or artistic work, 70 years from the death of the human
author, or in the case of works of joint authorship, 70 years from the death of
the last surviving author. If the natural author or authors are not
identified, nor become known subsequently, then the copyright term is
the same as that for an anonymous or pseudonymous work, i.e. 70 years from
publication for a literary or artistic work; or, if the work has not been
published in that time, 70 years from creation..
An exception is for scientific or critical editions of works in the public
domain. Per article 70 of the German copyright law, editions as the result of
scholarly or scientific analysis have a copyright length of 25 years. Therefore,
the editor of an urtext score of an opera by Beethoven would only receive 25
years of protection, but the arrangement of the full orchestral part for piano
would receive a full 70 year protection - timed from the publication of the
piano arrangement and not the death of the editor. Editing is a proper
work-for-hire activity. See also
Copyright Act of 1976 Copyright, Designs and Patents Act 1988
Copyright law of the European Union Derivative work
World Intellectual Property Organization References
Further reading Landau, Michael. "Ownership Issues in
Copyright Law"". GigaLaw.com. Archived from the original on August 12, 2002.
Retrieved October 25, 2007. Garon, Jon M.; Ziff, Elaine D. "The Work
Made for Hire Doctrine Revisited: Startup and Technology Employees and the
Use of Contracts in a Hiring Relationship". Minnesota Journal of Law,
Science & Technology. 2011;12(2): 489–527. Retrieved January 9, 2013.
External links Copyright codes of various countries
pertaining to Work For Hire: Ireland
Copyright and Related Rights Act, 2000 Sweden
"Copyright" and "Trademark" in Sweden. United States
"Circular 9: Works Made for Hire under the 1976 Copyright Act". An information
circular provided by the U.S. Government Copyright Office.
"Works Made for Hire under the 1976 Copyright Act". Works Made For Hire
Complete. "Definitions" in USC section number 101
of Title 17 of U.S. Code. Provides definitions of various kinds of "Work
for hire"; "Derivative work" based on WFH; and many other definitions of
pertinent terminology used in the U.S. Copyright Code.
World "Copyright of Intellectual and Artistic
Works" at WIPO. UNESCO Collection of National Copyright
Laws