Who Owns the Copyright? Why Creatives and Business Should be Familiar with the Concept of Work Made for Hire

When a work is made for hire, the author and copyright owner of the work is not the creator; the author and owner is the party that hired the creator. Ownership of a copyright vests initially in the author or authors of the work.[1] The author of a work is, generally, the creator of a work. Works made for hire (“work for hire”) is an exception to this general rule.

The concept of work made for hire is important for creators and businesses because it impacts copyright ownership. This is different from a situation where a creator assigns ownership to another party because here (where a work is made for hire), the creator is not the author.

A copyrightable work is “work made for hire” in two situations:

1. When a work is prepared by an employee within their scope of employment; or

2. When a specific type of work is created as the result of an express written agreement between the creator and party specially ordering or commissioning the work.[2]

‍Scope of Employment

Works prepared by an employee that are the result of work that falls within the employee’s regular responsibilities are works made for hire. That means that the employer is considered the author of the work and owns the associated copyright.

The Copyright Act does not define “employee,” “employer,” or “scope of employment.” Even if you do not have a written employment agreement, you may still be considered to have an employer-employee relationship for the purposes of work made for hire.

Case law guides courts to consider certain factors when assessing potential employer-employee relationships. These factors include:

• skill involved in creating the work;

• source of the tools used to create the work;

• location of the work;

• duration of the relationship between the parties;

• whether the hiring party has the right to assign additional projects to the hired party;

• whether the hiring party is a business;

• the provision of employee benefits; and

• tax treatment of the hired party.[3]

Specially Ordered or Commissioned Works

A work may also be considered a work made for hire where it is specially ordered or commissioned and the following criteria are met:

• The work falls within 1 of 9 categories of works that are eligible to be specially ordered or commissioned as works made for hire:

1. collective works;

2. motion picture or audiovisual works;

3. translations;

4. supplementary works;

5. compilations;

6. instructional texts;

7. tests;

8. answer material for a test; or

9. atlases.

• There is a written agreement between the ordering/commissioning party and the individual(s) who create the work.

• The parties expressly agree that the work is a work made for hire in the written agreement.

• The agreement is signed by all parties.[4]

Creators and business should note that many purported “work for hire” agreements may be invalid if they do not meet the above criteria.

‍If you need help assessing whether a work is made for hire or with preparing a work made for hire agreement, we can help. Contact us here for a quote or book a consultation.

[1] 17 U.S.C. § 201(a).

[2] 17 U.S.C. § 101.

[3]Cmty. For Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989).

[4] 17 U.S.C. § 101.