Works Made for Hire Doctrine: When Does It Apply?
Copyrights cover the broad spectrum of creative works. Generally speaking, copyright law protects original works of authorship fixed in any tangible medium. The applicable section of the United States Code (17 USC §102(a)) goes on to list eight categories of works including literary works, musical works, audiovisual works, and sound recordings. Although not specifically mentioned, software is also copyrightable. In most circumstances, the author (or authors) of the work are the initial owners of the copyright in that work. However, there is a very important exception to this rule – ownership of copyrights in “works made for hire.” For such works, the employer or person for whom the work is created is the initial author.
Understanding when the works made for hire doctrine applies is critical for artists, musicians, and others because it affects who initially owns the copyrights in a creative work. There are broadly two scenarios where this doctrine applies. The first is when an artist creates a work within the scope of his or her employment. While there are certain situations where it may not be clear who owns the copyrights in a work, the employer typically owns the copyrights in the works created by his or her employees as part of their employment. The second scenario is a little more complicated. It arises when the work is specially ordered or commissioned for certain uses outlined in the work made for hire definition (found in 17 USC §101) and “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” The key point is “written instrument.” If there is no writing (outside of an employment relationship), the work cannot be considered a work made for hire and so the copyright to the work initially belongs to the artist(s).
Artists and creators should always keep the work made for hire doctrine in mind, especially when signing consulting, contracting, or similar agreements. These types of agreements often include work made for hire (and potentially other) language which affects the ownership of the copyrights in whatever work is being produced.
David has helped individuals, research institutions, and start-ups with registering their trademarks and applying for patent protection on their inventions. During his career, he has helped his clients buy and sell intellectual property of all types, either alone or as part of a larger transaction, and license intellectual property rights.