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Works Made For Hire

Works Made For Hire

What is a Copyright?

A copyright is the exclusive legal right to use, publish, sell, or distribute the matter and form of something.  Although this definition is abstract, the purpose of a copyright is to protect the creator’s ideas from infringement.  As a general rule, the creator owns all copyrights in a work she creates; however, there is an important exception to this general principle.

Works Made for Hire Doctrine

If you create a work in the scope of your employment, then the exclusive copyright belongs to your employer.  Let us say for example, that you create the new logo as an employee for a major corporation.  The corporation most likely owns the right to the logo.  Experts call this the works made for hire doctrine.  It is important to remember however, that any work completed during your spare time and not as part of your employment belongs to you.

Definition in Law

According to title 17 of the U.S. Code, a work made for hire is:

(a) a work prepared by an employee within the scope of his or her employment; OR

(b) a work specially ordered or commissioned for use… if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In the Supreme Court decision Community for Creative Non-violence v. Reid, the Supreme Court determined that if the person creating the work is an employee of the employer, the part (a) applies.  If the person creating the work is an independent contractor then part (b) applies.  Cmty for Creative Non-Violence v. Reid, 109 S. Ct. 2166, 2168 (1989).

Employee vs. Independent Contractor

The difference between what the courts consider an employee and an independent contractor can be blurry; however, in Community for Creative Non-violence v. Reid, the courts identified three factors that make up an employer-employee relationship. Id. at 2177.  These factors include:

(1) Control by the employer over the work;

(2) Control by employer over the employee; and

(3) Status and conduct of employer

The court however, did not determine how many of these factors are needed to satisfy the definition of employee.  Similarly, the three factors listed above are not exhaustive.

On the contrary, a work created by an independent contractor can be a work made for hire only if (a) it falls within one of the nine categories of works listed in part 2 above and (b) there is a written agreement between parties specifying that the work is a work made for hire. (See more on independent contractors here).

Employers and employees should make a conscious effort to understand who has the rights to created property.  Specifically, it is important for employers to have signed contracts when dealing with copyright issues.  Because the lines are blurred between how the courts identify employees and independent contractors, employers should consult an attorney  when creating copyright agreements.

If you have any questions regarding intellectual property or copyright contracts please contact us.  We look forward to assisting you.


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