Works Made For Hire
In most situations, copyright ownership initially resides in the person who created the work. However, there are two instances where this is not the case: (1) where a work is created by an employee within the scope of employment, and (2) certain works that have been specially ordered or commissioned. In these two cases, the employer (not the creator) is considered to be the copyright owner. These types of works are called “works made for hire.”
Factors used to determine whether a work is prepared by an employee within the scope of his or her employment: The following factors are relevant to determining whether a work is prepared by an employee within the scope of his or her employment:
- the skill required to create the work;
- the source of the necessary 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 work is part of the regular business of the hiring party;
- whether the hiring party is in business;
- the providing of employee benefits;
- the tax treatment of the hired party.
Even if the work was created by an employee within the scope of employment, the employer and employee-creator may agree in writing that the employee will retain copyright ownership of the work. However, a work that was not created within the scope of a creator’s employment cannot be made into a work made for hire by way of agreement.
What types of work specially ordered or commissioned may be works made for hire: For a work to be considered to be a work made for hire, the parties must expressly agree in a written instrument signed by them that the work shall be considered a work made for hire and the work must be a work specially ordered or commissioned for use as a:
- a contribution to a collective work;
- part of a motion picture or other audiovisual work;
- supplementary work;
- instructional text, test, or answer material for a test; or
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. An “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
Difference Between a Work Made for Hire and an Assignment: There are potentially significant legal implications to having a copyrighted work classified as a work made for hire, as opposed to an assignment of copyright. Specifically, regardless of the terms of an assignment, a creator can terminate an assignment and reclaim the ownership interest in a copyright work by exercising his or her termination rights. However, if the organization owns the copyrighted work as a work made for hire, the rights are owned for the full term of protection and cannot be terminated.
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