Understanding Work for Hire in Copyright Law

A work made for hire is a creation protected by copyright law, crafted by an author or creator for another individual or corporate entity. The nature of this protection is detailed in 17 U.S.C. Section 101, distinguishing two scenarios:

Work for Hire

  1. Employee Creation:
    • When an employee contributes to a creative work within the scope of their employment, the resulting creation is automatically protected.
  2. Written Agreement Requirement:
    • In cases where the work is not a direct result of employment, a written agreement becomes crucial. This agreement explicitly states the intention for the work to be considered a work made for hire, outlining the rights and responsibilities of both parties.

Determining Employee or Independent Contractor Status: To enhance a business’s ability to protect its works, it must discern whether the creator is an employee or an independent contractor. The Supreme Court, in Community for Creative Non-Violence v. Reid, outlined key principles to determine this status:

  • Salary and benefits: Does the creator receive a salary or solely payment for the work?
  • Work continuation: Does the engagement persist beyond the project at hand?
  • Control: What level of control does the business exert over the creator?

While these factors provide guidance, a written agreement is essential if the creator is not an employee, ensuring that ownership belongs to the entity funding the work.


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.

Lessons from Legal Precedent: Horror Inc. v. Victor Miller A recent case, Horror Inc. v. Victor Miller, underscores the importance of clear agreements. The court ruled in favor of Miller, emphasizing that a work made for hire status must be expressly agreed upon in writing. Miller’s status as an independent contractor, not an employee, was determined by applying the established principles of the CCNV analysis.

In summary, a well-crafted written agreement, addressing work-for-hire status and other considerations like moral rights, is vital. This ensures businesses own the copyright and can leverage the work for their benefit. The Horror Inc. case serves as a cautionary tale, emphasizing the need for clarity in contractual agreements to avoid disputes over copyright ownership.

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.