Copyright 101: The Work for Hire Doctrine

Generally, ownership of copyright vests in the author of the work, a/k/a the person who created the work. One exception to this general rule is the “work for hire” doctrine, under which ownership of the copyright vests in the author’s employer or person for whom the author prepared the work. However, the work for hire doctrine is narrower than many people expect. The following is an overview of the work for hire doctrine and when it applies.

WHAT IS THE “WORK FOR HIRE” DOCTRINE?

Under the “work for hire” doctrine, ownership of copyright for works that are prepared by an employee within the scope of his or her employee or certain works commissioned by a third party is originally vested in the employer or commissioning party and not in the author/creator of the work.

WHEN DOES THE “WORK FOR HIRE” DOCTRINE APPLY?

The work for hire doctrine applies to:

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 part of a motion picture of 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. 

WHAT IS A WORK PREPARED BY AN EMPLOYEE WITHIN THE SCOPE OF HIS OR HER EMPLOYMENT?

In many cases, it is clear when a work was prepared by an employee within the scope of employment, as the author is a full time W-2 employee of the company and is employed and paid to create the work. In some cases such as independent contractors or part time employees, however, the distinction can be less clear, and in such cases, court consider a number of factors to determine whether the work was prepared by an employee within the scope of his or her employment, including:

• Skill required,

• Source of instrumentalities and tools,

• Location of work,

• Duration of relationship between the parties,

• Whether hiring party has right to assign additional projects to the hired party,

• Extent of hired party’s discretion over when and how long to work,

• Method of payment,

• Hired party’s role in hiring and paying assistants,

• Whether business is within regular business of hiring party,

• Whether hiring party is in business,

• Provision of employee benefits, and

• Tax treatment of hired party.

WHEN IS A COMMISSIONED WORK A “WORK FOR HIRE”?

Not every commissioned work falls under the definition of a work for hire. To be a work for hire, a commissioned work must be:

1. specially ordered or commissioned;

2. the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire; and

3. Fit into one of the following nine categories:

   1. a contribution to a collective work,

   2. part of a motion picture or other audiovisual work,

   3. a translation,

   4. a supplementary work,

   5. a compilation,

   6. an instructional text,

   7. a test or answer material for a test, or

   8. an atlas.

If a commissioned work does not meet all three of these criteria, the work for hire doctrine does not apply and ownership of copyright remains with the original author.

So, for example, if you commissioned an oil painting from an independent artist, it would not be a work for hire because the oil painting does not fit into one of the nine categories of works permitted. Similarly, if you commissioned a translation of a work from an independent party but did not get a signed writing agreeing that the work is a work for hire, it would not be a work for hire.

IF I COMMISSION A WORK AND THE “WORK FOR HIRE” DOCTRINE DOESN’T APPLY, HOW DO I TRANSFER COPYRIGHT?

Because the application of the work for hire doctrine is often unclear or uncertain, to avoid risk and uncertainty it is often advisable to also include language to the effect that if the work is deemed not to be a work for hire, then the author expressly transfers all copyright to the commissioning party or employer.