One issue that people often overlook when drafting agreements involving creative works is the copyright concept of “work for hire.” Failing to come to a clear understanding of the parties intention can cause unnecessary conflict that neither party really benefits from.
What is Work for Hire
Simply put, work for hire addresses issues of copyright ownership when the work has been created for the benefit of someone other than the creator. Typically, the owner of a copyrighted work is the person who creates it, however, if a work is deemed to be a Work for Hire then ownership belongs to the hiring party. Work for hire situations occur in two basic ways; 1. works created by employees and 2. works created by independent contractors.
Federal law states that Works 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. (17 U.S.C. sec 101)
Works created by employees in the scope of their employment are presumed to be works for hire and are owned by the employer. The main question in these situations is whether the work was created in “the scope” of the employee’s employment. For example, the janitor of a publishing company is not not responsible for writing manuscripts, however, he might be responsible for maintaining training materials related to his job – the manuscript would be outside the scope of his employment, while the training materials would belong to the company as a Work Made for Hire.
However, many works are created in situations other than employee/employer relationships. In the case of professionals like graphic artists, photographers, or web page designers a work may be created under the terms of a contract. In these cases, if the work falls within certain categories of works (it may also be a work for hire. These guidelines require that the work be of a certain type, specifically created for the hiring party, and that the parties must explicitly state in writing that they intend for the work to be a work for hire.
For the creative professional, the distinction of what is and is not a work for hire is important. Clarification of the issues from the start is a great method of avoiding misunderstandings down the road.