Wikilegal/Works Made for Hire
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A "work made for hire" is a legal concept present in some common law countries referring to a copyrighted work created under a contractual relationship at the request of the creator’s client/employer. When a creator makes a work for hire, the client/employer, not the creator, is granted the ownership of the copyright in the work.
Under U.S. copyright law, a "work made for hire" is 1) a work created by an employee as part of their job or 2) by an independent contractor in cases in which the parties agree in writing that a certain work is deemed to be "made for hire". A similar structure is present in the legal systems of other common law countries, notably the U.K. and Australia, but also some civil law countries such as Japan.
U.S. Copyright Law
The formal rule of copyright law is that the copyright protection over a certain work arises from the moment that original works of authorship are fixed in any tangible medium of expression and that ownership of said copyright vests initially in the author or authors of the work. In normal English, that means that when someone has made a new creative thing and actually written, drawn, or recorded it, that creator is the owner of the copyright.
The notion of a "work made for hire" is an exception to this rule because it leads to situations in which the ownership of the copyrighted work will vest in the client or employer that requested the creation of the work.
Under Section 101 of the Unites States Copyright Act, there are two types of works considered "works made for hire": (i) works prepared by an employee within the scope of their employment, or (ii) some works specially commissioned if the client and the creator expressly agree in writing that the work will be considered a work made for hire.
Works created by an employee
Whenever an employee is hired to make copyrighted works, the employer is deemed the original owner of the work and therefore owns it.
The U.S. Copyright Act does not define the terms "employer," "employee" and "scope of employment," so the U.S. Supreme Court has established criteria to determine whether a certain work was created under an employment relationship, based on agency law
In most cases, it is fairly obvious whether someone is an employee (because the employer and employee agree or just because it’s a well known type of job). For tough cases, in Community for Creative Non-Violence v. Reed, the Supreme Court identified the following factors to identify whether there is an employment relationship in place, based on the standards set forth by agency law. For each factor below, more control by the employer makes the person more likely to be an employee:
- Control by employer over the work (the employer directs how the work is going to be done, provides equipment/means for work to be created);
- Control by employer over the employees (the employer has control over the employee's schedule, determines the methods of payment, etc.); and
- Status and conduct of the employer (the employer's business consists or involves producing these works, provides employees with benefits).
Even if there factors are not exhaustive, they provide basic guidelines for the test to evaluate the nature of a relationship to determine whether the creator is an employee when uncertain.
The next step is to determine what it means for a work to be created within the scope of an employment relationship. This detail is important in order to avoid giving away copyrighted works created by the employee on their own time.
In U.S. Auto Parts Network v. Parts Geek, LLC, the Court established the following test to define scope of employment: in order to evaluate whether the creation of a certain work is part of the scope of employment, one has to determine whether:
- it was the kind of work the employee was hired to perform,
- whether it occurred within work hours and space limits, and
- whether is was motivated, at least in part, by the purpose of serving the employer
In general, the closer an employment relationship comes to regular employment, the more likely it is that a work created within that scope will be deemed a work made for hire and automatically owned by the employer (unless the parties have signed an agreement in writing to the contrary).
A good shorthand way of thinking about this is if the creator is an employee of a business and the work was made for the business, the business owns it.
Works commissioned by independent contractors
If the relationship between the parties is not deemed an employment relationship under the criteria mentioned above, the next step is to determine whether the work complies with the requirements of a work made for hire commissioned between independent contractors.
A work created by an independent contractor will be deemed a work made for hire only if (i) it falls within one of the categories established on part (2) of the statutory definition and (ii) there is a written agreement between the parties which expressly provides that the work is a work made for hire.
The types of works that are included in the definition are work(s) 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.
Notably, the statutory definition of work made for hire may exclude relevant types of works, such as photographs, some types of text, music and others if they are not made for one of the purposes above.
Copyright Law in Civil Law Systems
In most civil law countries (which notably include continental Europe, Latin America and some parts of Asia), the concept of a "work made for hire" does not apply to some types of copyrighted work and the original author is the person or persons who created the work.
This originates, in part, from the civil law protection of "author's rights" - which have a greater focus on protecting the rights of creators. This means that, in general, the original authorship (and some special protections that go with that) of the copyrighted work will stay with the employee in civil law countries even if the ownership is transferred.
However, this structure does not prevent the employee from assigning the rights over the work to the employer, usually through a contractual provision in the employment agreement. Certain countries even provide for statutory implied assignments or exceptions to the original authorship rule for certain types of work (such as software).
In any event, to the extent that the individual is deemed the original creator of the work under a civil law regime, the moral rights associated with authorship cannot be waived or assigned. Therefore, even if the work is duly assigned to the employer or commissioner, through agreement or statute, the employee/independent contractor is entitled to attribution rights (the right to be identified as the creator) and may have certain rights to preserve the integrity of the work.
- Copyright in Japan Getting the Deal Through, July 2018
- 17 U.S. Code § 102 - Subject matter of copyright
- 17 U.S. Code § 201 - Ownership of copyright
- Circular 9, United States Copyright Office
- 17 U.S. Code § 101 - Definitions
- Community for Creative Non-Violence v. Reid, 490 U.S. 730 (Supreme Court, 1989).
- U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, et al., No. 10-56129 (9th Cir. 2012)
- The Copyright Act defines "supplementary works" as works created to accompany an existing work by a different author, to build or comment upon, explain, review or introduce the main work. Some examples include forewords, afterwords, illustrations, editorial notes, musical arrangements, bibliographies and indexes. The full legal definition can be found in the statutory definition of "work made for hire".
- Goldstein, Paul. International Copyright: Principles, Law and Practice. § 5.2.I.4 (2001)