[Looking for Part 1 of this three-part series? Go here.]
In this second part of a three-part series on work made for hire, we will explore what makes a work made for hire and then will look at the practical consequences of this doctrine.
What makes a work a work made for hire?
To determine what makes a work made for hire, we have to look at the Copyright Act (at 17 U.S.C. §101). The Copyright Act provides two different categories of work made for hire. The first category is comprised of those works of authorship made by an employee within the scope of his or her employment. Those works are automatically work made for hire even if there is not a contract between the employer and the employee saying that the creative works are. It just happens automatically.
The second category of work made for hire does not deal with employers and employees, but deals with independent contractors creating specially commissioned works. Here are the works that that the Copyright Act says can be a work made for hire (if the contract says it is a work made for hire):
- contribution to a collective work
- part of a motion picture or other audiovisual work
- translation
- supplementary work
- compilation
- instructional text
- test
- answer material for a test
- atlas
The Copyright Act gives a little more information about what a supplementary work is. Think, for example, of when one author writes an introduction or a foreword for a book written by another author. Supplementary works can also include illustrations that an artist creates for another work.
What is the practical effect of something being a work made for hire?
Simply stated, a work made for hire is owned the very moment it is created. The party who did the hiring is the owner. The work is not even owned by the person who did the work, even for a millisecond before it is transferred to the employer or the party who hired the independent contractor. No, the employer or the party who hired the independent contractor is treated as the author and that party owns the work from the very moment it is created.
So from an even more practical perspective, if the work does not qualify as a work made for hire, and the party who does the hiring wants to own the copyright, there needs to be a written assignment.
See also:
Blog posts in this series:
Need help with a work made for hire issue? Let’s talk.
Call me at (630) 362-7237, or send an email to ebrown@internetcases.com.
About the author
Evan Brown is an attorney in Chicago practicing copyright, trademark, technology and in other areas of the law. His clients include individuals and companies in many industries, as well as the technology companies that serve them. Twitter: @internetcases