914-908-6757 anthony@vernalaw.com

A work made for hire is a work that is protected by copyright law that the author (creator) made for another person or corporate entity.

Sometimes, that work is prepared by an employee within the scope of his or her employments.  Other times, there must be a written agreement that states the work is to be made for hire.

Work for Hire

According to 17 U.S.C. Section 101, A “work made for hire” is—

(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 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.

How Can a Business Improve its Ability to Protect its Works?

Businesses need to understand if the person making a work protected by copyright law is an employee or independent contractor.  According to Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the United States Supreme Court ruled that “to determine whether a work is a ‘work made for hire’ … [a] court should   first apply general common law of agency principles to ascertain whether the work was prepared by an employee or an independent contractor.”  These are simple principles:

  1. Is a salary paid to the author or is the money only for the work?
  2. Are benefits paid?
  3. Does work continue after the work-at-question is finished?
  4. What other kind of control is made on the author of the work?

Obviously, these are guides and not a hard test.  But if the author is not an employee, a business must have a written agreement that the work is a work made for hire and that ownership belongs to the entity paying for the work.

There are other concerns in the written agreement, such as the author’s moral rights, that must be discussed and agreed to.  But having a written work-for-hire agreement with any independent contractor creating a work for a business will allow the business to own the copyright and then use the work in its business and profit from it.

If you have any questions about copyright law and works made for hire, please call Verna Law, P.C. at 914-908-6757 or send an e-mail to anthony@vernalaw.com.