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 or commissioning party, and not the employee or commissioned party, 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 the courts.

STATUTORY DEFINITION

Section 101 of the federal 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, an 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, afterwards, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional test” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

DETERMINING WHETHER A WORK 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 U.S. Supreme Court decision (Community for Creative Non-Violence v. Reid). 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 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.

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 indeed a work made for hire.

EMPLOYER-EMPLOYEE RELATIONSHIPS 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 “employer-employee” relationship as defined by agency law:

(1) Control by the employer over the work. For example, the employer may determine how the work is done, have the work done at the employer’s location, and provide equipment or other means to create the work.

(2) Control by employer over the employee. 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, for example.

(3) Status and conduct of employer. 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 unclear 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 work for hire created in an employment relationship are:

• 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.

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 A WORK 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 any federal application for copyright registration.

WHO IS THE OWNER OF THE COPYRIGHT IN A WORK 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.

EFFECT OF TERMINATION RIGHTS

The federal copyright law provides that certain grants of the rights in a work that were made by the author may be terminated 35 to 40 years after the grant was made or after publication, depending on the circumstances. The termination provisions of the law do not apply to works made for hire.

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