206:), a hiring party often finds that it has only limited scope to alter, update, or transform the work. For example, a motion picture may hire dozens of creators of copyrightable works (e.g., music scores, scripts, sets, sound effects, costumes) any one of which would require repeated agreements with the creators if conditions for showing the film or creating derivatives of it changed. Failing to reach agreement with any one creator could prevent the showing of the film entirely. To avoid this scenario, producers of motion pictures and similar works require that all contributions by non-employees be works made for hire.
171:
instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
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surviving author. If the natural author or authors are not identified, nor become known subsequently, then the copyright term is the same as that for an anonymous or pseudonymous work, i.e. 70 years from publication for a literary or artistic work; or, if the work has not been published in that time, 70 years from creation. (Copyright durations for works created before 1993 may be subject to transitional arrangements.)
155:, 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. (17 U.S.C. § 101)
214:
work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings. Nonetheless, failure to secure a work-for-hire agreement by commissioning organizations can create difficult situations. One such example is the artist
213:
An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright. However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire." These restrictions, in both the
209:
On the other hand, a work for hire agreement is less desirable for creators than a copyright transfer agreement. Under work for hire, the commissioning party owns all rights from the very start even if the contract is breached, whereas under a transfer of rights, the creator can hold back the rights
159:
The first situation applies only when the work's creator is an employee, not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to a multitude of
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to be the original rightholder, then the duration of protection is in general the same as the copyright term for a personal copyright: i.e., for a literary or artistic work, 70 years from the death of the human author, or in the case of works of joint authorship, 70 years from the death of the last
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An author can grant his or her copyright (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant
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In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though
187:
the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text,
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In the United States a "work for hire" (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term, life of the author plus 70 years, because the "author" of a work for
126:, but the publishers hold copyrights to the work. However, articles published in academic journals, or work produced by freelancers for magazines, are not generally works created as a work for hire, which is why it is common for the publisher to require the copyright owner, the author, to sign a
257:
Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the
170:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the
113:
in its credits. In both cases, the software is the property of the employing company. In both cases, the actual creators have moral rights. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce
305:
hire is often not an actual person, in which case the standard term would be unlimited, which is unconstitutional. Works published prior to 1978 have no differentiation in copyright term between works made for hire and works with recognized individual creators.
58:) and so a work for hire is not created merely because parties to an agreement state that the work is a work for hire. It is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. In the
456:
325:
An exception is for scientific or critical editions of works in the public domain. Per article 70 of the German copyright law, editions as the result of scholarly or scientific analysis have a copyright length of 25 years. Therefore, the editor of an
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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
249:
The application of the law to materials such as lectures, textbooks, and academic articles produced by teachers is somewhat unclear. The near-universal practice in education has traditionally been to act on the assumption that they were
266:
In 1999, a work for hire related amendment was inserted into the
Satellite Home Viewer Improvement Act of 1999. It specified that sound recordings from musical artists could be categorized as works for hire from the recording studios.
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factors to determine whether an employer-employee relationship exists. In the
Supreme Court case affirming that the common law of agency should be used to distinguish employees from independent contractors in the work for hire context,
242:. As a result, it is nearly impossible to film portions of one of downtown Portland's most vibrant neighborhoods, and the city has lost out on the potential to create merchandise and souvenirs from one of its most iconic landmarks.
332:
but the arrangement of the full orchestral part for piano would receive a full 70 year protection – timed from the publication of the piano arrangement and not the death of the editor. Editing is a proper work-for-hire
457:"Memorializing Relationships Early Pays Off Later: Does a Film Producer Make a Mistake By Not Entering Into Work For Hire Agreements with Film Crew, Talent, Writers and Other Independent Contractors Whom She Hires?"
80:
78:
Accreditation has no impact on work for hire in the US. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. States that are party to the
224:, an iconic symbol of the city of Portland, Oregon. Unlike most works of public art, Kaskey has put strong prohibitions on the use of images of the statue, located atop the main entrance to the famous
283:
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)
531:"Who Owns the Copyright to Faculty-Created Web Sites?: The Work-For-Hire Doctrine's Applicability Tto Internet Resources Created for Distance Learning and Traditional Classroom Courses"
46:, is a work that is subject to copyright and is created by employees as part of their job or some limited types of works for which all parties agree in writing to the WFH designation.
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132:, a short legal document transferring specific author copyrights to the publisher. In this case the authors retain those copyrights in their work not granted to the publisher.
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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)
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until all terms of the contract are fulfilled. Holding back the rights can be a forceful tool when it is necessary to compel a commissioning party to fulfill its obligations.
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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
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there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."
246:
covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).
151:(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
162:
91:, with moral rights including the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work.
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jurisdictions, if a work is "made for hire," the employer, not the employee, is considered the legal author. In some countries, this is known as
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Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee).
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On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire
696:"The Work Made for Hire Doctrine Revisited: Startup and Technology Employees and the Use of Contracts in a Hiring Relationship"
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70:. The entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
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in USC section number 101 of Title 17 of U.S. Code. Provides definitions of various kinds of "Work for hire"; "
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not signed, before the work begins. Retroactive contractual designation as a work for hire is not permitted.
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identified certain factors that characterize an "employer-employee" relationship as defined by agency law:
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The circumstances in which a work is considered a "work made for hire" is determined by the
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486:"U.S. Copyright Office - Termination of Transfers and Licenses Under 17 U.S.C. 203"
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When relying on agreements in which creators transfer rights to a hiring party (
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698:. Minnesota Journal of Law, Science & Technology. 2011;12(2): 489–527
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Copyright Term and the Public Domain in the United States, 1 January 2007
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employee is paid entirely in equity without benefits or tax withholding.
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800:
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of an opera by
Beethoven would only receive 25 years of protection,
105:, which is credited simply to Microsoft Corporation. By contrast,
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Copyright codes of various countries pertaining to Work For Hire:
81:
Berne
Convention for the Protection of Literary and Artistic Works
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Schiller & Schmidt Inc. v. Nordisco Corp., 969 F2d 410 (1992)
558:"The 'Work for Hire' Doctrine and Start-up Technology Companies"
772:"Circular 9: Works Made for Hire under the 1976 Copyright Act"
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Circular 9: Work-Made-For-Hire Under the 1976 Copyright Act
317:, even if a Member State provides for the possibility of a
188:(7) a test, (8) answer material for a test, (9) an atlas;
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Directive harmonizing the term of copyright protection
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the work must be specially ordered or commissioned;
778:"Works Made for Hire under the 1976 Copyright Act"
505:"Your best shot at a perfectly sculpted figure"
271:Employer–employee relationship under agency law
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801:"Copyright of Intellectual and Artistic Works"
8:
811:UNESCO Collection of National Copyright Laws
484:(www.copyright.gov), U.S. Copyright Office.
183:if all of the following conditions are met:
163:Community for Creative Non-Violence v. Reid
166:, the Court listed some of these factors:
600:"Sound Recordings as Works Made for Hire"
232:for including shots of the statue in the
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374:World Intellectual Property Organization
433:Cmty. for Creative Non-Violence v. Reid
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354:Copyright, Designs and Patents Act 1988
747:Copyright and Related Rights Act, 2000
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709:
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98:hired many programmers to develop the
759:"Copyright" and "Trademark" in Sweden
7:
675:"Ownership Issues in Copyright Law"
655:Copyright law of the United Kingdom
364:Copyright law of the European Union
262:Amendment covering sound recordings
556:Ziff, Elaine D. (April 12, 2011).
44:copyright law in the United States
25:
503:Bancud, Michaela (May 27, 2003).
780:. Works Made For Hire Complete.
109:lists many of the developers of
27:Copyrighted work created for pay
694:Garon, Jon M.; Ziff, Elaine D.
50:is a statutorily defined term (
455:Rosini, Neil (March 5, 2019).
414:Berne Convention Article 6bis
74:Author accreditation in the US
1:
677:. GigaLaw.com. Archived from
118:featuring characters such as
204:copyright transfer agreement
657:, and links from that page.
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653:In the UK see for example
136:Law in the United States
719:Cite journal requires
580:Cite journal requires
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157:
644:, Directive 93/98/EC.
628:July 4, 2012, at the
435:, 490 U.S. 730 (1989)
401:US Copyright Office,
344:Copyright Act of 1976
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145:Copyright Act of 1976
83:recognize separately
537:on December 12, 2008
68:corporate authorship
18:Corporate authorship
807:. (Searchable site)
420:23 May 2018 at the
681:on August 12, 2002
295:Copyright duration
230:Paramount Pictures
129:copyright transfer
62:and certain other
32:work made for hire
620:Peter B. Hirtle,
490:www.copyright.gov
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702:January 9,
516:2014-09-12
381:References
228:. He sued
221:Portlandia
147:as either
124:Spider-Man
85:copyrights
56:§ 101
541:April 28,
333:activity.
111:Photoshop
96:Microsoft
64:copyright
820:Category
626:Archived
606:March 9,
563:March 9,
461:FWRV.com
418:Archived
338:See also
741:Ireland
356:(CDPA;
313:In the
234:Madonna
100:Windows
753:Sweden
376:(WIPO)
120:Batman
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