In our last post we talked about copyrights in general terms. Now, its time to start getting into the details, starting with works made for hire. So, who owns the copyright to a work made for hire? To answer this question, we must first take a look at its definition.
La Copyright Act of 1976 defines the term work made for hire. The definition is a two part one, and can be quite confusing. In essence, the definition goes like this: a copyrightable work is made for hire when: (i) it is created by an employee as part of their regular duties, or (ii) it is created as a result of an express written agreement between the creator and the person commissioning or ordering it. Lets brake this down.
Scope of employment
The first part of this definition is pretty straight forward. Copyright to a work created by an employee as part of regular employment duties will always vest in the employer. Simple enough. But, what about employers who get creative with employee relationship labels and refer to them as freelancers or independent contractors, even though they treat them as employees? Who owns the copyright then?
To answer this question we look at case law. Specifically, Community for Creative Non-Violence v. Reed. In it, the Supreme Court of the United States set forth guidelines to assist in determining when a person is considered an employee, for purposes of work made for hire. From these guidelines, we can extrapolate questions. Some of these are:
- What skill is required to create the work?
- Where will the work be created?
- Does the hiring party provide the space, materials or tools needed to create the work?
- How long is the work relationship between the parties?
- Does the hiring party control the work schedule?
- Can the hiring party assign other projects?
- How will the creator be paid? Are employee benefits paid or provided? Are taxes removed from the pay?
- Can the creator hire and pay assistants or is this controlled by the hiring party?
Bottom line, it comes down to control. Who has control over how, where and when the work is created. If the contracting party has the control then the creator is considered an employee and the work is a work made for hire wherein copyright vests in the employer. But, if the creator has the control, then he is not considered an employee, the work is not a work made for hire and copyright will vest in the creator.
Commissioned or specially ordered works
On to the second part of the definition. For a specially commissioned or ordered work to be a work made for hire specific requirements have to be met. These range from contractual requirements to the specific nature of the work.
The contractual requirements for a work made for hire agreement are:
- There is a written agreement between the person ordering the work and the person creating the work;
- the agreement is in writing and signed by all parties before any work is begun; and
- the agreement clearly states the parties expressly agree the work is a work made for hire.
The statutory requirements regarding the types or nature of the work which may qualify as a work made for hire is topic for a different post. A detailed list and description of these requirements is available at Circular 30 of the U.S. Copyright Office.
Bottom line, if these requirements are not met, the work is not a work made for hire and copyright vests in the creator.
How does this translate into real life? Well, if your are a photographer, sculptor, painter, writer or designer, to name a few, copyright ownership to your creations will not always lie with you. At the end of the day the relationship between the parties will have a direct impact on what is considered a work made for hire and who will own the copyright. Remember, as we said in our previous blog, the copyright owner has the exclusive right to say who, what, when and how the work may be used!
Stay tuned for upcoming posts on fair use, first sale doctrine and more.
Author: Patricia Ramírez Gelpí, J.D., LL.M.
Image: Chaosamran_Studio/Shutterstock.com
