Generally, the person who creates a work, such as graphic novel or a musical, is automatically the legal author and owner of the copyright in that work. This is not always the case. Under the concept of “work-for-hire” (or more formally, “work-made-for-hire” as defined in the Section 101 of the U.S. Copyright Act), it is the person or entity that employs the creator of the work that is treated as the author, and therefore the copyright owner, of the work. Copyright ownership is important, as the owner has the permission to exercise all rights under copyright (as listed in Section 106), including the right to reproduce and distribute the work, publicly perform or display it and to make derivative works of it. When someone other than the copyright owner exercises any of those exclusive rights, the owner may have a claim of copyright infringement against that other party.
What is a Work-for-Hire?
A work-for-hire refers to a situation where a party commissions or hires another party to create a work, and the resulting creation is considered the property of the hiring party, rather than belonging to the creator. As an example, if you hire someone as a wedding photographer, and craft your agreement to invoke the work-for-hire doctrine, then you own the photographs as the author of the works, even though someone else actually took the photographs.
For a work to be classified as a work-made-for-hire, it must fall under the definition in Section 101 in that it must either be (i) created by an employee within the scope of their employment duties or (ii) be specially ordered or commissioned for use as one of the following:
- a contribution to a collective work;
- a part of a motion picture or other audiovisual work;
- a translation;
- a supplementary work;
- a compilation;
- an instructional text;
- a test;
- answer material for a test;
- an atlas.
Importantly, to be a work-for-hire as a commissioned work (such as may be created by an independent contractor), both parties must also expressly agree in a signed writing that the work is considered a work-for-hire.
Does My Agreement Need the Magic Words “Work-for-Hire”?
It is best practice to include the words “work-for-hire” in your written agreement. However, using those magic words is not strictly necessary for a work to be considered as a work-for-hire under copyright law. What’s more critical is ensuring that the agreement clearly outlines the intentions of both parties regarding ownership and rights to the created work. Even if the agreement doesn’t explicitly use the phrase “work-for-hire,” if it contains sufficiently clear language about the parties’ intentions that the ownership of the work belongs to a specific party, the work can still be considered a work-for-hire.
Who Benefits from the Work-For-Hire Doctrine – Should I Include Those Words In My Agreement?
The answer depends on who you are and your goals with the work.
Let’s go back to the earlier example about wedding photographers. A wedding photographer would probably not want to sign an agreement in which their photographs are considered work-for-hire. Since the photographer earns their livelihood by taking the photographs, the photographer would want to own the rights to make copies of the photographs (i.e., for sale to the bride and groom) and to charge for them, a valuable right. In this case, the wedding photographer should use explicit language in their agreement stating that the photographs will not be considered as work-for-hire under the Copyright Act and that the exclusive rights of ownership will vest with the photographer.
On the other hand, let’s say you are the bride or the groom – or more broadly, let’s say you are the hiring party. If you are hiring someone to create illustrations for your textbook or you’re the producer of a film hiring a composer to write the score, it is in your best interest to include the words “work-for-hire” in your agreement with the person you are hiring to create the work. When you have the commissioned creative explicitly state in a signed writing that the work will be considered a work-for-hire under the Copyright Act, citing Section 101, you will be the author and the owner of the work and have all the rights of ownership over that work under copyright law.
Conclusion
Understanding the nuances of work-for-hire agreements is essential for navigating the complexities of ownership rights in creative collaborations and when artists are engaged to create works for others. Careful contract drafting and negotiation can safeguard the rights and interests of all parties involved. For further guidance regarding copyright, copyright ownership, and the work-for-hire doctrine, reach out to a member of our team for next steps.