Copyright And Work For Hire.

Unless there is a written agreement to the contrary, signed by both parties, a copyrighted work is owned by the author.  If the employer or the person the work was made is deemed the owner of the copyright, then it is considered a work made for hire.  It is EXTRMEMLY important for employees and consultants to understand the meaning of a “work for hire.”

Section 101 of the copyright law defines a “work made for hire” as:

  • 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 law is applied to each particular situation and the relationship between the parties.  The Supreme Court held in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), that to determine whether a work is made for hire, one must first establish whether the work was prepared by an employee or an independent contractor. This determination will influence how the above definition is applied.

If an employee creates a work, the first part of the statute applies, and generally the work would be considered a work made for hire.  Conversely, if a work is created by an independent contractor (as determined under the general common law of agency in most parts of the country), then part two of the statute applies.  The work will only be considered a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition in the statute and (2) there is a written agreement between the parties specifying that the work is a work made for hire.  Please remember, there are exceptions that can affect your rights.

To help clarify the definition of work for hire, the U.S. Copyright Office offers the following examples:

  • A software program created within the scope of his or her duties by a staff programmer for Creative Computer Corporation
  • A newspaper article written by a staff journalist for publication in the newspaper that employs him
  • A musical arrangement written for XYZ Music Company by a salaried arranger on its staff
  • A sound recording created by the salaried staff engineers of ABC Record Company

How Can We Help?

Determining whether a work is made for hire often involves complex legal analysis. If you find that you are on the wrong side of a copyright issue or need help perfecting your copyright, I can help.

Please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities.  Connect with me on Google +

Norman

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