Copyright Basics–The Work for Hire, Pt. 1

Copyright Basics–The Work for Hire, Pt. 1

Working with creative professionals provides deep satisfaction for me. However, some creative professionals have a difficult time with what their rights are to the work they perform on behalf of clients. I have seen some professionals who simply give their rights away without considering the implications of that waiver. On the opposite side of the spectrum are those professionals who may take reserving their rights a bit too far. Often the confusion is in the definition of work for hire within the Copyright Act.

Work for Hire describes the conditions in which someone other than the creator is vested with the rights to copyright material. There are two conditions in which work for hire would apply.

The first is when the creator is employed by a company or entity and the created work is done within the scope of their employment. A good example is a marketing staffer for a corporation who creates ads for the company’s products or services. The person is hired to produce graphic and/or text for the company’s advertising and uses company resources to do so. The work she creates belongs to the company. Category 1 of the Work for Hire doctrine is easy to understand.

The second scenario is a bit more complicated and usually implicates with work of creative professional who work as freelancers or as a separate business . If the work is specially ordered or commissioned (i.e. done by an independent contractor) that falls into one of the nine statutory categories of work listed below AND the parties expressly agree in writing that the work will be considered a work for hire.

So breaking that down a little there are actually three parts to that definition.

  1. The work has to be commissioned or ordered. This means any work done on spec is not usually considered a work for hire.
  2. The work has to fall into one of the nine categories (still coming). If it does not fall into one of these categories it is not a work for hire.
  3. The parties must have a written agreement that the work is being done as a work for hire. Having a clear contract on this score is vital.

So what are the nine categories? Here they are:

  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 (a work prepared for the purpose of introducing, explaining, revising, etc., a work by another author),
  5. a compilation,
  6. an instructional text,
  7. a test,
  8. answer material for a test, or
  9. an atlas.

The Copyright Act construes these categories broadly. For example, a website is often considered a compilation or a collective work because it brings together many different elements including video, graphics, texts, or photographs.

Any work that does not fall into either of the main categories means that the creator must assign rights to a subsequent person for the copyrights to flow to that second person.

Next week, I will discuss how creative professionals can protect their rights either under work for hire doctrine or for works outside the work for hire doctrine.