Work for hire
Encyclopedia
A work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States
and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
States that are party to the Berne Convention for the Protection of Literary and Artistic Works
recognize separately copyright
s and moral rights. Moral rights include the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work.
The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. For example, Microsoft
hired many programmers to develop the Windows
operating system
, which is credited simply to Microsoft Corporation. By contrast, Adobe Systems
lists many of the developers of Photoshop in its credits. In both cases, the software is the property of the employing company. In both cases, the actual creators have moral rights. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce comic books featuring characters such as Batman
or Spider-Man
, but the publishers hold copyrights to the work. However, articles published in academic journals, or work produced by freelancers for magazines, are not generally works created as a work for hire, which is why it is common for the publisher to require the copyright owner, the author, to sign a copyright transfer, a short legal document transferring specific author copyrights to the publisher. In this case the authors retain those copyrights in their work not granted to the publisher.
The circumstances in which a work is considered a "work made for hire" is determined by the language of the United States
Copyright Act of 1976
:
The first situation applies only when the work's creator is an employee, not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employers from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid
, the Court listed some of these factors:
On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:
In other words, mutual agreement that a work is a work for hire is not enough. For example, if Willy James commissioned Octavia Goodnotes to write a symphony in honor of WillyJamesCo's 10th Anniversary, and she agreed in writing that the work was a work for hire, and promised in writing to never consider the symphony anything but a work for hire — it would not be a work for hire because symphony was not created as part of a motion picture or other audiovisual work. In other words, the work does not come within one of the nine categories of WFH that are created by an independent contractor. In the absence of additional assignment or licensing agreements, James would have only an implied-in-conduct nonexclusive license and Goodnotes would remain free to sell or license her symphony to others, including James, if she so desired. As a general practice, such commissions specify an exclusivity period, confer publishing rights to the commissioning organization, or exempt the commissioning organization from performance and print royalties. For vocal works such as operas, a common practice is for the author of the text to be compensated as work-for-hire and the composer of the music to assume full rights under the copyright law.
An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright. However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire." These restrictions, in both the work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings. Nonetheless, failure to secure a work-for-hire agreement by commissioning organizations can create difficult situations. One such example is the artist Raymond Kaskey's 1985 statue, Portlandia
, an iconic symbol of the city of Portland, OR. Unlike most works of public art, Kaskey has put strong prohibitions on use images of the statue, located atop the famous Portland Building. He sued Paramount pictures for including shots of the statue in the Madonna motion picture, Body of Evidence. As a result, it is nearly impossible to film portions of one of downtown Portland's most vibrant neighborhoods, and the city has lost out on the potential to create merchandise (keychains, etc.) from one of its most iconic landmarks.
When forced to rely on an implied license, a hiring party often finds that it has only limited rights to alter, update, or transform the work for which it paid. For example, a motion picture feature may hire dozens of creators of copyrightable works (e.g. music scores, scripts, sets, sound effects), any one of which could limit use of the entire film by denying permission to copy their contribution; the producers avoid this scenario by requiring that all contributions by non-employees fulfill the work-for-hire requirements.
An author can grant their copyright rights (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).
The application of the law to materials such as lectures, textbooks, and academic articles produced by teachers is somewhat unclear. The near-universal practice in education has traditionally been to act on the assumption that they were not work for hire.
Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding.
In the European Union
, even if a Member State provides for the possibility of a legal person to be the original rightholder (such as is possible in the UK), then the duration of protection is in general the same as the copyright term for a personal copyright: i.e., for a literary or artistic work, 70 years from the death of the human author, or in the case of works of joint authorship, 70 years from the death of the last surviving author. If the natural author or authors are not identified, nor become known subsequently, then the copyright term is the same as that for an anonymous or pseudonymous work, i.e. 70 years from publication for a literary or artistic work; or, if the work has not been published in that time, 70 years from creation. (Copyright durations for works created before 1993 may be subject to transitional arrangements).
An exception is for scientific or critical editions of works in the public domain. Per article 70 of the German copyright law (and therefore applicable to the entire EU under the Berne Convention), editions as the result of scholarly or scientific analysis have a copyright length of 25 years. Therefore, the editor of an urtext score of an opera by Beethoven would only receive 25 years of protection, but the the arrangement of the full orchestral part for piano would receive a full 70 year protection - timed from the publication of the piano arrangement and not the death of the editor. Editing is a proper work-for-hire activity.
Sweden
United States
World
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
States that are party to the Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
recognize separately copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s and moral rights. Moral rights include the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work.
The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. For example, Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
hired many programmers to develop the Windows
Microsoft Windows
Microsoft Windows is a series of operating systems produced by Microsoft.Microsoft introduced an operating environment named Windows on November 20, 1985 as an add-on to MS-DOS in response to the growing interest in graphical user interfaces . Microsoft Windows came to dominate the world's personal...
operating system
Operating system
An operating system is a set of programs that manage computer hardware resources and provide common services for application software. The operating system is the most important type of system software in a computer system...
, which is credited simply to Microsoft Corporation. By contrast, Adobe Systems
Adobe Systems
Adobe Systems Incorporated is an American computer software company founded in 1982 and headquartered in San Jose, California, United States...
lists many of the developers of Photoshop in its credits. In both cases, the software is the property of the employing company. In both cases, the actual creators have moral rights. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce comic books featuring characters such as Batman
Batman
Batman is a fictional character created by the artist Bob Kane and writer Bill Finger. A comic book superhero, Batman first appeared in Detective Comics #27 , and since then has appeared primarily in publications by DC Comics...
or Spider-Man
Spider-Man
Spider-Man is a fictional Marvel Comics superhero. The character was created by writer-editor Stan Lee and writer-artist Steve Ditko. He first appeared in Amazing Fantasy #15...
, but the publishers hold copyrights to the work. However, articles published in academic journals, or work produced by freelancers for magazines, are not generally works created as a work for hire, which is why it is common for the publisher to require the copyright owner, the author, to sign a copyright transfer, a short legal document transferring specific author copyrights to the publisher. In this case the authors retain those copyrights in their work not granted to the publisher.
Law of the United States
The U.S. Constitution requires the initial owner of a copyright in a work be the author. In most cases, the author is the individual or group of individuals that actually creates the work. However, when a work is created by an employee as part of his or her job, or when certain kinds of works are created on behalf of a client and all parties agree in writing to the designation, a work may be a "work for hire". The author of a work for hire is never the actual creator. Instead, the author is the person or entity that hired the actual creator. The above U.S. Constitutional requirement is why the employer or paying client is considered the "author" in a work for hire, contrary to standard usage of the word "author", because a law directing copyright be awarded to an employer or client instead of the author would be unconstitutional.The circumstances in which a work is considered a "work made for hire" is determined by the language of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Copyright Act of 1976
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
:
The first situation applies only when the work's creator is an employee, not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employers from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid
Community for Creative Non-Violence v. Reid
Community for Creative Non-Violence v. Reid, 490 U.S. 730 , was a United States Supreme Court case regarding ownership of copyright.-Facts:...
, the Court listed some of these factors:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."
On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:
- the work must come within one of the nine limited categories of works listed in the definition above, namely (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, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
- the work must be specially ordered or commissioned;
- there must be a written agreement between the parties specifying that the work is a work made for hire.
In other words, mutual agreement that a work is a work for hire is not enough. For example, if Willy James commissioned Octavia Goodnotes to write a symphony in honor of WillyJamesCo's 10th Anniversary, and she agreed in writing that the work was a work for hire, and promised in writing to never consider the symphony anything but a work for hire — it would not be a work for hire because symphony was not created as part of a motion picture or other audiovisual work. In other words, the work does not come within one of the nine categories of WFH that are created by an independent contractor. In the absence of additional assignment or licensing agreements, James would have only an implied-in-conduct nonexclusive license and Goodnotes would remain free to sell or license her symphony to others, including James, if she so desired. As a general practice, such commissions specify an exclusivity period, confer publishing rights to the commissioning organization, or exempt the commissioning organization from performance and print royalties. For vocal works such as operas, a common practice is for the author of the text to be compensated as work-for-hire and the composer of the music to assume full rights under the copyright law.
An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright. However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire." These restrictions, in both the work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings. Nonetheless, failure to secure a work-for-hire agreement by commissioning organizations can create difficult situations. One such example is the artist Raymond Kaskey's 1985 statue, Portlandia
Portlandia
Portlandia is a sculpture by Raymond Kaskey located above the entrance of Michael Graves' Portland Building in downtown Portland, Oregon, at 1120 SW 5th Avenue...
, an iconic symbol of the city of Portland, OR. Unlike most works of public art, Kaskey has put strong prohibitions on use images of the statue, located atop the famous Portland Building. He sued Paramount pictures for including shots of the statue in the Madonna motion picture, Body of Evidence. As a result, it is nearly impossible to film portions of one of downtown Portland's most vibrant neighborhoods, and the city has lost out on the potential to create merchandise (keychains, etc.) from one of its most iconic landmarks.
When forced to rely on an implied license, a hiring party often finds that it has only limited rights to alter, update, or transform the work for which it paid. For example, a motion picture feature may hire dozens of creators of copyrightable works (e.g. music scores, scripts, sets, sound effects), any one of which could limit use of the entire film by denying permission to copy their contribution; the producers avoid this scenario by requiring that all contributions by non-employees fulfill the work-for-hire requirements.
An author can grant their copyright rights (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).
The application of the law to materials such as lectures, textbooks, and academic articles produced by teachers is somewhat unclear. The near-universal practice in education has traditionally been to act on the assumption that they were not work for hire.
Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding.
Law of Ireland
Under Irish law, the first copyright holder of a work made by an employee in the course of an employment is the employer. To the contrary, copyright in works made for hire outside an employer/employee relationship remains with the author.Copyright duration
In the United States a "work for hire" (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term of life of the author plus 70 years because the "author" of a work for hire is often not an actual person, in which case the standard term would be unlimited, which is unconstitutional. Works published prior to 1978 have no differentiation in copyright term between works made for hire and works with recognized individual creators.In the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, even if a Member State provides for the possibility of a legal person to be the original rightholder (such as is possible in the UK), then the duration of protection is in general the same as the copyright term for a personal copyright: i.e., for a literary or artistic work, 70 years from the death of the human author, or in the case of works of joint authorship, 70 years from the death of the last surviving author. If the natural author or authors are not identified, nor become known subsequently, then the copyright term is the same as that for an anonymous or pseudonymous work, i.e. 70 years from publication for a literary or artistic work; or, if the work has not been published in that time, 70 years from creation. (Copyright durations for works created before 1993 may be subject to transitional arrangements).
An exception is for scientific or critical editions of works in the public domain. Per article 70 of the German copyright law (and therefore applicable to the entire EU under the Berne Convention), editions as the result of scholarly or scientific analysis have a copyright length of 25 years. Therefore, the editor of an urtext score of an opera by Beethoven would only receive 25 years of protection, but the the arrangement of the full orchestral part for piano would receive a full 70 year protection - timed from the publication of the piano arrangement and not the death of the editor. Editing is a proper work-for-hire activity.
See also
- Copyright Act of 1976Copyright Act of 1976The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
(U.S.United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
) - Copyright, Designs and Patents Act 1988Copyright, Designs and Patents Act 1988The Copyright, Designs and Patents Act 1988 , also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been...
(CDPA; UKUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
) - Copyright law of the European UnionCopyright law of the European UnionThe copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of...
- Derivative workDerivative workIn United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
- World Intellectual Property OrganizationWorld Intellectual Property OrganizationThe World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
(WIPO)
Further reading
- Landau, Michael. . Archived from Gigalaw.com April 2000. Accessed October 25, 2007.
External links
Copyright codes of various countries pertaining to WFH:Sweden
United States
- "Circular 9: Works Made for Hire under the 1976 Copyright Act". An information circular provided by the U.S. Government Copyright Office.
- "Works Made for Hire under the 1976 Copyright Act". Works Made For Hire Complete.
- "Definitions" in USC section number 101 of Title 17 of U.S. Code. Provides definitions of various kinds of "Work for hire"; "Derivative workDerivative workIn United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
" based on WFH; and many other definitions of pertinent terminology used in the U.S. Copyright Code.
World
- "Copyright of Intellectual and Artistic Works" at WIPOWorld Intellectual Property OrganizationThe World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
. (Searchable site.)