Works Made For Hire: Definition in Law

Circular 9
Works Made for Hire

Copyright law protects a work from the time it is created in a fixed form. From
the moment it is set in a print or electronic manuscript, a sound recording, a
computer software program, or other such concrete medium, the copyright
becomes the property of the author who created it. Only the author or those
deriving rights from the author can rightfully claim copyright.
There is, however, an exception to this principle: works made for hire.
If a work is made for hire, an employer is considered the author even if an
employee actually created the work. The employer can be a firm, an organization, or an individual.
The concept of work made for hire can be complicated. This circular refers
to its definition in copyright law and draws on the Supreme Courts interpretation of it in Community for Creative Non-Violence v. Reid, decided in 1989.
Definition in Law
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a work made
for hire in two parts:
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
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas,
if the parties expressly agree in a written instrument signed by them that the
work shall be considered a work made for hire.
The law defines a supplementary work as a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of
introducing, concluding, illustrating, explaining, revising, commenting upon,
or assisting in the use of the other work, such as forewords, afterwords, pictorial
illustrations, maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes.
2 9.0912
Works Made for Hire 2
The law defines an instructional text as a literary, pictorial, or graphic work prepared for publication and intended
to be used in systematic instructional activities.
3 Status and conduct of employer. For example, the

employer is in business to produce such works, provides
the employee with benefits, or withholds tax from the
employees payment.
Supreme Court Interpretation
These factors are not exhaustive. The Court left unclear

which of these factors must be present to establish the
employment relationship under the work-for-hire definition.
Moreover, it held that supervision or control over creation of
the work alone is not controlling.
However, all or most of these factors characterize a regular,
salaried employment relationship, and it is clear that a work
created within the scope of such employment is a work made
for hire (unless the parties involved agree otherwise).
Examples of works made for hire created in an employment relationship include:
Determining whether a work is made for hire can be difficult

because it is not always easy to apply the legal definition of
work made for hire.
The Supreme Courts decision in Community for Creative
Non-Violence v. Reed addressed that definition. The Court
held that one must first ascertain whether a work was prepared by (a) an employee or (b) an independent contractor.
If an employee created the work, part 1 of the definition
above applies, and the work will generally be considered a
work made for hire.
But note that the term employee in the definition differs
from the common understanding of the term. For copyright
purposes, employee means an employee under the general
common law of agency. See the subheading Agency Law
below.
If an independent contractor created the work, and the
work was specially ordered or commissioned, part 2 of the
definition above applies. An independent contractor is
someone who is not an employee under the general common
law of agency.
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.
Agency Law
To help determine who is an employee, the Supreme Court in
Community for Creative Non-Violence identified factors that
make up an employer-employee relationship as defined by
agency law. The factors fall into three broad categories.
1 Control by the employer over the work. For example, the
employer determines how the work is done, has the work
done at the employers location, and provides equipment
or other means to create the work.
2 Control by employer over the employee. For example, the
employer controls the employees schedule in creating the
work, has the right to have the employee perform other
assignments, determines the method of payment, or has
the right to hire the employees assistants.
A software program created by a staff programmer within

the scope of his or her duties at a software firm
A newspaper article written by a staff journalist for publication in the newspaper that employs the journalist (who
is not a freelance writer)
A musical arrangement written for a music company by a
salaried arranger on the companys staff
A sound recording created by salaried staff engineers of a
record company
The closer an employment relationship comes to regular,
salaried employment, the more likely it is that a work created
within the scope of that employment will be a work made for
hire. But because no precise standard exists for determining
whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a
lawyer may be advisable.
If a work is made for hire, the employer or other person
for whom the work was prepared is the author and should
be named as the author on the application for copyright registration. Respond yes to the question on the application
about whether the work is made for hire.
Owner of the Copyright in a Work Made for Hire

If a work is made for hire, the employer or other person
for whom the work was prepared is the initial owner of the
copyright unless both parties involved have signed a written
agreement to the contrary.
Term of Copyright Protection

The term of copyright protection of a work made for hire is
95 years from the date of publication or 120 years from the
date of creation, whichever expires first. (A work not made
for hire is ordinarily protected by copyright for the life of the
author plus 70 years.) For information about terms of copyright protection, see Circular15a, Duration of Copyright.
Termination Rights
The copyright law provides that certain grants of the rights
in a work that were made by the author can be terminated
35 to 40 years after the grant was made or after publication,
depending on the circumstances. However, the termination
provisions of the law do not apply to works made for hire.
For Further Information

The Internet
Circulars, announcements, regulations, copyright application

forms, and related materials are available on the Copyright
Office website at www.copyright.gov.
By Telephone
For general information about copyright, call the Copyright

Public Information Office at (202) 707-3000 or 1-877-4760778 (toll free). Staff members are on duty from 8:30am to
5:00pm, eastern time, Monday through Friday, except federal
holidays. Recorded information is available 24 hours a day.
Request application forms and informational circulars 24
hours a day at (202) 7079100 or 1-877-476-0778 by leaving a
recorded message.
By Regular Mail
Write to:
Library of Congress
Copyright OfficeCOPUBS
101 Independence Avenue SE
Washington, DC 20559
U.S.CopyrightOffice LibraryofCongress 101IndependenceAvenueSE Washington,DC20559 www.copyright.gov

circular 09 reviewed: 092012 Printed on recycled paper
u.s. government printing office: 2012-xxx-xxx x xxxx

Works Made For Hire: Definition in Law

Uploaded by

Works Made For Hire: Definition in Law

Uploaded by

Circular 9

Works Made for Hire

Works Made for Hire 2

3 Status and conduct of employer. For example, the

Supreme Court Interpretation

These factors are not exhaustive. The Court left unclear

Determining whether a work is made for hire can be difficult

A software program created by a staff programmer within

Owner of the Copyright in a Work Made for Hire

Works Made for Hire 3

Term of Copyright Protection

For Further Information

Circulars, announcements, regulations, copyright application

For general information about copyright, call the Copyright

Works Made for Hire 4

U.S.CopyrightOffice LibraryofCongress 101IndependenceAvenueSE Washington,DC20559 www.copyright.gov

u.s. government printing office: 2012-xxx-xxx x xxxx

You might also like