Works Made for Hire: Five Things to Know

POSTED ON October 26, 2020 / IN FWRV Legal



Generally, the U.S. Copyright Act provides that an individual who creates photos, writings, artwork, music or any other form of copyrightable work will be considered the author and will own the copyright. A major exception to the rule is the work made for hire. For those works, the individual creator’s employer, or in some instances the person commissioning the work, will be deemed the author and own the copyright instead of the individual creator.

Creators and employers should know these five things about works for hire:

1.  Works created by employees within the scope of their “regular” employment are works for hire for their employers. To determine whether or not employment is “regular,” factors like these are taken into account: Does the employer determine when and where services are rendered? Does the employer take withholding from the employee’s paycheck? Is there a salary rather than payment by project? Affirmative answers point toward regular employment where the employer owns the copyright.

2.  Works created by independent contractors (i.e., by everyone other than regular employees) in response to an order or commission are not works for hire unless two conditions are satisfied:

  • –The works must fit into one of nine specified categories, the most noteworthy of which are audiovisual works, collective works (such as magazines) and so-called supplementary works (a broad category that includes musical arrangements as well as contributions to books like forewords, afterwords, illustrations, and maps); AND

  • –Both the creator and the commissioning party must sign a written agreement that the work is to be considered a work for hire. This should be done before the work is created.

3.  If you are the “employer” and want to secure copyright ownership without worrying about whether your employee is “regular” or if the two conditions relating to independent contractors are met, then you will want a written agreement acknowledging work for hire status as well as a written assignment of copyright as a fallback. (Copyrights can only be assigned in writing.) Conversely, if you are an independent contractor and not a regular employee, you should avoid entering into this sort of agreement if you wish to retain the copyright.

4.  The Copyright Act allows most authors to terminate grants of rights in their works usually during a period commencing 35 years after the date a grant is executed. (Grants of publishing rights have a different schedule.) Works for hire, however, are an exception; grants of rights in works for hire are not subject to termination.

5.  The rules applicable to works for hire in the Copyright Act cannot be modified by contract. In other words, an employer cannot convert a work that doesn’t satisfy work for hire criteria into a work for hire simply by having the individual creator agree to it. A work either originates as a work for hire or it doesn’t, and that status is permanent.

The rules of copyright ownership are usually straightforward: the creator owns the copyright. Works for hire comprise a major exception.

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