Last week we reviewed the basics of common law and federal registrations for copyrights. In this article we’ll explore one of the most commonly discussed ownership-related concepts, work made for hire.
A copyright springs into exists when an original work is created. Generally ownership of that work and the associated copyright vests with the author. However, work made for hire changes this in some particular circumstances as set forth in Title 17 of the U.S. Code. “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”
The greatest area of work made for hire is “works prepared by an employee within the scope of his or her employment.” For example, a salaried employee of a major corporation would not have any personal copyright ownership or authorship for company website designs made during work hours and as part of his job. However, “employee” isn’t limited to just full-time salaried workers. For these purposes, “employee” means someone falling under the common law definition of agency. Generally whether or not someone falls into this category depends on the extent of control the “employer” has over the work (how it’s done, when and where) or the employee (their schedule, their assignments and their support staff). Think this is confusing? You’re not alone. The Supreme Court set forth what guidelines we have in Community for Creative Non-Violence v. Reid, which you can find here.
There is also second section of the work made for hire statute. It doesn’t require an employer-employee relationship, but rather requires a work specifically ordered or commissioned for use in one of 9 specific categories and that the parties expressly agree in writing signed by both parties that the work shall be work made for hire. Given the requirement for a signed agreement, there is less likelihood for confusion in this form of work made for hire.
You should consider copyrights as “sticky” to the author, but not “unstick-able”. Ownership of a work, such as a sculpture, does not necessarily transfer with it ownership of the copyright, Title 17 § 202. However, since copyright ownership is, itself, transferable, a well crafted sales agreement could transfer the intellectual property or grant a license to some aspect. (This assumes, of course, that is the will of the parties.) For work made on behalf of another, even if it does not meet the “work for hire” requirements, the contract can set forth that ownership (not authorship) of or a license to the copyright vests with the purchaser upon payment of the contract.
Circular 9 from the U.S. Copyright Office has great information on work made for hire.
For creative-folks, the website, Keep Your Copyrights, discusses how to educate yourself to better utilize copyrights.