Introduction
Under the 1976 Copyright Act as amended (title 17 of the United States
Code), a work is protected by copyright from the time it is created
in a fixed form. In other words, when a work is written down or otherwise
set into tangible form, the copyright immediately becomes the property
of the author who created it. Only the author or those deriving their
rights from the author can rightfully claim copyright.
Although the general rule is that the person who creates a work is
the author of that work, there is an exception to that principle: the
copyright law defines a category of works called “works made for
hire.” If a work is “made for hire,” the employer,
and not the employee, is considered the author. The employer may be
a firm, an organization, or an individual.
To understand the complex concept of a work made for hire, it is necessary
to refer not only to the statutory definition but also to its interpretation
in cases decided by courts.
Statutory Definition
Section 101 of the copyright law defines a “work made for hire”
as:
(1) a work prepared by an employee within the scope of his or her
employment; or
(2) 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.
For the purpose of the foregoing sentence, a “supplementary
work” is a work prepared for a publication as a secondary adjunct
to a work by another author for the purpose of introducing, concluding,
illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial
illustrations, maps, charts, tables, editorial notes, musical arrangements,
answer material for tests, bibliographies, appendixes, and indexes;
and an “instructional text” is a literary, pictorial,
or graphic work prepared for publication and with the purpose of use
in systematic instructional activities.
Determining Whether aWork Is Made for Hire
Whether or not a particular work is made for hire is determined by
the relationship between the parties. This determination may be difficult,
because the statutory definition of a work made for hire is complex
and not always easily applied. That definition was the focus of a 1989
Supreme Court decision (Community for Creative Non-Violence
v. Reid, 490 U.S. 730 [1989]). The court held that to determine
whether a work is made for hire, one must first ascertain whether the
work was prepared by (1) an employee or (2) an independent contractor.
If a work is created by an employee, part 1 of the statutory definition
applies, and generally the work would be considered a work made for
hire. IMPORTANT: The term “employee” here
is not really the same as the common understanding of the term; for
copyright purposes, it means an employee under the general common law
of agency. This is explained in further detail below. Please read about
this at “Employer-Employee Relationship Under Agency Law.”
If a work is created by an independent contractor (that is, someone
who is not an employee under the general common law of agency), then
the work is a specially ordered or commissioned work, and part 2 of
the statutory definition applies. Such a work can be 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 and (2) there is a written agreement between the
parties specifying that the work is a work made for hire.
Employer-Employee Relationship Under Agency
Law
If a work is created by an employee, part 1 of the copyright code’s
definition of a work made for hire applies. To help determine who is
an employee, the Supreme Court in CCNV v. Reid identified
certain factors that characterize an “employeremployee”
relationship as defined by agency law:
1) Control by the employer over the work (e.g.,
the employer may determine how the work is done, has the work done
at the employer’s location, and provides equipment or other
means to create work)
2) Control by employer over the employee (e.g.,
the employer controls the employee’s schedule in creating work,
has the right to have the employee perform other assignments, determines
the method of payment, and/ or has the right to hire the employee’s
assistants)
3) Status and conduct of employer (e.g., the employer
is in business to produce such works, provides the employee with benefits,
and/or withholds tax from the employee’s payment)
These factors are not exhaustive. The court left un-clear which
of these factors must be present to establish the employment relationship
under the work for hire definition, but held that supervision or control
over creation of the work alone is not controlling.
All or most of these factors characterize a regular, salaried employment
relationship, and it is clear that a work created within the scope
of such employment is a work made for hire (unless the parties involved
agree otherwise).
Examples of works for hire created in an employment relationship are:
The closer an employment relationship comes to regular, salaried employment,
the more likely it is that a work created within the scope of that employment
would be a work made for hire. However, since there is no precise standard
for determining whether or not a work is made for hire under the first
part of the definition, consultation with an attorney for legal advice
may be advisable.
Who Is the Author of aWork Made for Hire?
If a work is a work made for hire, the employer or other person for
whom the work was prepared is the author and should be named as the
author in Space 2 of the application for copyright registration. The
box marked “work-made-for-hire” should be checked “yes.”
Who Is the Owner of the Copyright in aWork Made
for Hire?
If a work is a work made for hire, the employer or other person for
whom the work was prepared is the initial owner of the copyright unless
there has been a written agreement to the contrary signed by both parties.
Effecton Term of Copyright Protection
The term of copyright protection of a work made for hire is 95 years
from the date of publication or 120 years from the date of creation,
whichever expires first. (A work not made for hire is ordinarily protected
by copyright for the life of the author plus 70 years.) For additional
information concerning the terms of copyright protection, request Circular
15a “Duration of Copyright.”