Works Made for Hire

WHAT IS A Work Made For Hire?:

A work made for hire is a copyrightable work that is made by a person or group of persons while performing the work for some one else. The usual rule is that the "author" is the one who creates the work. This rule changes that by making the person for whom the work is made the "author". This can be another person, a company such as a corporation or other entity who either employs those who create the work or uses the services of an independent contractor for the purpose of having the work created.

The work can be music, film, software, a literary text or article, collective work, photographs, art or any other original work being made at the order of the "employer."

There are many tests for "who is an employee" vs. "who is an independent contractor." The answer to this question may times goes to the very details of the nature of the relationship. Factors include:

Whether the creative person(s) use their own equipment or that of the "employer."
Whether the creators are paid with taxes deducted or in gross.*
Whether the creators have their own business, office or place they do the work.
What are the modes of detail exercised by the "employer", are they every detail of the work or is it a desired end result or product.
Where the work (or a majority of it) takes place.
Other factors are applied based on the facts of a particular relationship.

* Note that in many states of the USA, IF an agreement says that a work is "made for hire" the "employer" is required to deduct taxes, pay for workers compensation insurance, make Employment Department payments and other rights for the person(s), even if other factors show it was really an independent contractor type relationship.

A. The Copyright Act, 17 USC Sec. 201.(a) provides: "Initial Ownership...Copyright in a work protected under this title vests initially in the author or authors of the work."

1. The "author" or a work made for hire, then, is either the employer or the independent contractor who performs the work, without a written agreement saying otherwise. Note that the "author" is not necessarily the copyright ownership "claimant."

B. WORKS MADE FOR HIRE.--IN THE CASE OF A WORK MADE FOR HIRE, THE EMPLOYER IS CONSIDERED THE AUTHOR , NOT THE EMPLOYEE, UNLESS THE PARTIES HAVE EXPRESSLY AGREED OTHERWISE IN A WRITTEN INSTRUMENT SIGNED BY THEM.

C. A "work made for hire" is further defined by 17 USC Sec. 101 for works by OTHER THAN
AS AN EMPLOYEE: If the work was created by an independent contractor (based on the factors listed above), then these rules apply and the following factors must be analyzed. An independent contractor generally is the "author" for copyright ownership purposes unless the work falls into the following special categories AND there is a WRITTEN agreement making the hirer of the independent contractor the "author":

   1. a work SPECIALLY ORDERED OR COMMISSIONED for use as:
      a. a contribution to a collective work, (which can be a series of items)
      b. a part of a motion picture or other audiovisual work,
      c. a translation, (which can mean a new version of software)
      d. a supplementary work, (a new version)
      e. a compilation, (which can be databases and software)
      f. an instructional text, (including a software manual)
      g. a test,
      h. answer material for a test, or
      i. as an atlas, (query whether mapping software may fall under this)
IF: the parties expressly agree in a written instrument
            signed by them that the work shall be considered
            a work made for hire.

D. Another way a work prepared by someone other than the person who actually created it may become another's is by a written agreement stating that the person hired to do the work "assigns" or permanently grants to the "author" the work. In other words, the person who does the work thus gives title and all rights in and to the work to another. This type of agreement must be recorded in the Copyright Office and is called an "assignment."

The issue is who owns the copyright? To learn more see Copyright Basics and the
Copyright Office Link