Works Made For Hire
Works Made For Hire under the 1976 Copyright Act
"Work made for hire" or "work for hire" ("WFH") is an exception to the principle that the person who creates a work is the author of that work. 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. "Work made for hire" is also known as corporate authorship. The employer may be a corporation or an individual.
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.
If a work is made "for hire" within the meaning of the Copyright Act, the
employer or commissioning party, who paid for the
work and took the economic risk of it, is deemed the author for copyright purposes and is
the initial owner of the copyright.
Copyright Act §101 sets forth the two circumstances under which a work may be found to be
a work for hire.
a) Work prepared by an employee within the scope of his employment.
In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court
held that the term "employee" in
this context should be interpreted according to common law agency principles. If the
person doing the work is an "employee"
within the meaning of the common law, and the work was done within the scope of his
employment, that is,
- whether the work is the kind he was employed to prepare;
- whether the preparation takes place primarily within the employer's time and place
specifications; and
- whether the work was activated, at least in part, by a purpose to serve the employer),
then the work is a work for hire and the employer is the initial owner of the
copyright, rather than the employee who actually
conceived and fixed the expression.
b) Specially ordered or commissioned works:
Works created by independent contractors (rather than employees) can be deemed works for
hire only if two conditions are
satisfied:
the work must fit into one of nine categories of works enumerated in Copyright Act §101.
the parties must expresly agree in a written, signed instrument that the work will be
considered a work made for hire.
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 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 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:
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 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 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 on 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.”
Effect on Termination Rights
The copyright code 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.
Work
for Hire Author Contract - Line by Line - Customizeable CD-Rom in Word Doc, Ready to Use
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Applicability
of the work-for-hire doctrine to faculty work
Williams v. Weisser, 273 Cal. App. 2d 726 (1969)
A professor owns the common law copyright to his or her lectures.
A for-profit company paid students to attend university courses for the purpose of taking
notes and providing a typed version of the notes. The company created outlines from the
notes and sold them to university students.
Under the pre-1976 common law applicable here, a professor, and not the university, owns
his or her lecture materials
regardless of whether the professor developed the materials during his “leisure
time” or university time; the copyright is with the
professor and not with the employer.
The court emphasized the undesirable consequences of constraining a professor’s
ability to build on his or her work and to move freely to other institutions. Although
this case relies on the former law, it reveals the policy concerns that underlie ownership
issues.
A university-issued memorandum proclaimed the professor's property rights in his or her
lectures. The court expressly
distinguished a university lecture from other “products of the mind” an employee
is hired to create.
Lectures were distinguished from “valve designs, commercial drawings or radio
scripts,” which are owned by the employer.
Vanderhurst v. Colorado Mountain College District, 16 F.Supp.2d 1297 (D.
Colo. 1998)
Without a written agreement to the contrary, the copyright to a professor’s work,
created in the course of fulfilling teaching
duties, belongs to the university.
A professor of veterinary technology prepared a course outline on his own time with his
own materials for a course that he taught at the college. After termination of his
employment, the professor claimed ownership of the copyright to his course outline. The
court held that the creation of the outline by the professor should be fairly regarded as
one method of carrying out the objectives of his employment. Therefore, the outline was
subject to the work-for-hire doctrine and the rights belong to the college.
Pursuant to the work-for-hire doctrine, copyrights to a professor’s work that was
created fairly and reasonably incidental to his
or her employment do not belong to the professor, but to the college or university.
A university policy specifying faculty members’ duties included professional service
activities such as course, program, and
curriculum development and course preparations. In this case, the policy reinforced the
court’s decision that a professor’s work created for the class fell within the
scope of his employment.
Weissman v. Freeman, 684 F.Supp. 1248 (S.D.N.Y. 1988)
Collaborative work efforts can result in joint ownership of the work product.
Two nuclear-medicine physicians conducted research that was documented in papers, syllabi,
and articles throughout the
project. Their efforts culminated in a publication used by the physicians for lectures.
One physician objected when the other
author prepared a new version of the material for his own lectures but removed the name of
the second author.
A collaborative work product results in joint copyright ownership, even if the authors did
not contribute equally. As joint owners, each contributor shares equally in the ownership
and control of the work unless otherwise agreed.
Lacking an express agreement allocating rights to control the work product, both
physicians shared equally in the ownership of
the work. As such, each author is permitted to modify or update the material as needed for
his or her use.
Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987)
A professor owns his or her scholarly work, while the university owns materials created
for administrative purposes.
Three professors agreed to work jointly on a clinical program for practicing pharmacists
culminating in an article describing the
results. One professor changed the work and published his own article with his name listed
first in the list of co-authors.
Tradition dictates that scholarly articles are owned by the scholar or professor and not
by the university, even under the
“work-for-hire” provision of the Copyright Act. As co-owners of the copyright
material, one author may modify the work
product (create a derivative work) and publish the new version without infringing on the
other co-authors’ property rights.
A university policy set forth parameters for when a faculty member retains copyright.
Interpreting that university policy, the court differentiated scholarly work from
administrative work, which would fall under the
work-for-hire provision of the Copyright Act. If, for example, the professor is
commissioned to participate in a study for the use of computers at the university, the
resulting report is the property of the university.
University of Colorado Foundation v. American Cyanamid, 880 F.Supp. 1387
(D. Colo. 1995)
In a case where the issue is not contested, a court will readily conclude that scholarly
journal articles are “work-for-hire.”
Two professors of the University of Colorado agreed to perform a study for Cyanamid, a
private company. The study resulted
in new findings and a published article in a scientific publication.
University patent policy established that inventions made by university employees using
university facilities were to be assigned to the university. Although the policy did not
extend to copyright, the court readily accepted the university foundation’s assertion
that journal articles also belonged to the institution.
The university owns the copyright to the article written by its professors, because it was
work done within the scope of their
employment.
The professors and the university were cooperating on this litigation, so they did not
contest this issue. Cyanamid also did not
contradict the university foundation’s claim of institutional ownership.
The case tacitly reveals that faculty, individually, may not have the resources to defend
or assert their legal claims to ownership of copyright.
Manning v. Board of Trustees Community College, 109 F.Supp.2d 976 (C.D.
Ill. 2000)
The university owns the copyright in a work made for hire created by a staff member unless
both parties have signed an express, written agreement that the copyrights to the work
shall belong to the staff member.
After a community college had terminated a full-time employee working as a staff
photographer, both the college and the
photographer claimed ownership to the rights of the photographer’s pictures taken for
the college during the course of his
employment. The staff member alleged that, based on copyright policy included in the
college’s policy manual, he owned the
rights to the photographs.
The court held that even if the copyright policy was sufficient to create an implied
contract between the college and the
photographer, the photographer failed to show an express agreement signed by the parties
stating that he had the copyright in the photographs.
The Copyright Act of 1976 sets forth a statutory presumption that the employer owns the
copyright in a work made for hire
unless the parties have expressly agreed otherwise in a written instrument signed by both
parties designating the employee as the owner of the rights to the work.
The court found that the language of the university’s copyright policy was not
binding, because the parties had not signed an
express, written agreement as required by law to effect the change of ownership.
Therefore, the statutory presumption that the
university owned the work made for hire prevailed.