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Work For Hire: What it is and Why it Matters

Written by Zana Tomich on March 14, 2016 Category: Business Law & Transactions, Creative Services Firms, Employment Law
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Work Made for Hire (or Work for Hire) is a long established doctrine that provides some exceptions to general Copyright law, which provide an author or creator of written work automatic copyright protection in his or her work.

When an employee is hired for a job, the written work he/she creates within the scope of employment is automatically considered a “work made for hire”. The employee is compensated for the work created, and in return, the employer owns the work. There is no copyright protection to the employee for the works created on the job, unless there is a written agreement stating otherwise. The work made for hire doctrine is an exception to the general rule that any work an individual creates is subject to copyright protection. If the work were created on the employee’s own time, at home, and outside the scope of employment, it would likely be outside the scope of the work for hire doctrine.

However, when a company, such as a Creative Agency, contracts with a vendor, independent contractor, or freelancer, the work for hire doctrine is a bit more nuanced. When an Agency commissions work for a client, it too will be a work made for hire, if it meets the three-prong test:

1) The work is within one of the nine categories of the Copyright Statute, i.e. if it is intended to be part of a collective work, as part of a motion picture or audiovisual work, a translation, supplementary work, compilation, instructional text, a test, answer material for a test, or an atlas;

2) A written agreement that it is a “work for hire” must be entered into prior to the work’s creation;

3) The work is specially ordered or commissioned by the Agency.

Ambiguities may arise when there is no agreement; the agreement was entered into after the fact; or there is an agreement but the work itself is not within one of the categories. Each of these cases may be dealt with on case-by-case basis, but to avoid the problem entirely, each relationship with free-lancers or independent contractors should be documented, and the work for hire should be expressly discussed both in writing and otherwise. To save a “work” that may later be determined to be outside the scope of the statute, the agreement should include a savings clause, i.e. a provision that the contractor will assign all rights to the works created for the Agency that may be a copyright of the independent contractor.

Ambiguous case law exists on the issue of a work for hire Agreement entered into after the work is created is valid to bring the work within the scope of work for hire doctrine. To steer clear of ambiguities and to protect the Agency and the work created for it, it is safest to enter into a signed agreement before the work is created.

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