Copyright FAQ: What Is a Work for Hire?
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If a copyrighted work is considered a work made for hire, the employer or other person for whom the work was made is deemed the owner of the copyright unless there has been a written agreement to the contrary signed by both parties. Therefore, it is 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 above definition must then be applied to the particular situation and the relationship between the parties. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held 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 because this determination will influence how the above definition is applied.
If an employee creates a work, the first part of the statutory definition 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), then part two of the statutory definition 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 and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
To 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
ABOUT THE AUTHOR: Denton L. Anderson
Denton L. Anderson practices in all areas of intellectual property. He is widely recognized as an expert in patent prosecution, trademark prosecution and intellectual property licensing, and has extensive experience in all aspects of intellectual property litigation.
Mr. Anderson practices law at the Pasadena, Riverside and San Bernardino offices of Sheldon Mak & Anderson. He possesses extensive knowledge and expertise that is invaluable to his clients in fulfilling their intellectual property needs. He has a systematic and thorough approach to problem-solving that can be traced back to his early years as a research engineer. This approach is employed in his legal practice to achieve exceptional results for his clients.
Copyright Sheldon Mak & Anderson PC
More information about Sheldon Mak & Anderson PC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
• 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 above definition must then be applied to the particular situation and the relationship between the parties. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held 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 because this determination will influence how the above definition is applied.
If an employee creates a work, the first part of the statutory definition 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), then part two of the statutory definition 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 and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
To 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
ABOUT THE AUTHOR: Denton L. Anderson
Denton L. Anderson practices in all areas of intellectual property. He is widely recognized as an expert in patent prosecution, trademark prosecution and intellectual property licensing, and has extensive experience in all aspects of intellectual property litigation.
Mr. Anderson practices law at the Pasadena, Riverside and San Bernardino offices of Sheldon Mak & Anderson. He possesses extensive knowledge and expertise that is invaluable to his clients in fulfilling their intellectual property needs. He has a systematic and thorough approach to problem-solving that can be traced back to his early years as a research engineer. This approach is employed in his legal practice to achieve exceptional results for his clients.
Copyright Sheldon Mak & Anderson PC
More information about Sheldon Mak & Anderson PC
View all articles published by Sheldon Mak & Anderson PC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
