Under the Copyright Act in the U.S., the author of a creative work automatically owns the copyright. Whether you are a writer, composer, visual artist, filmmaker, or anyone who creates a copyrightable work, as a general rule you control how the work is copied, published, licensed, and reproduced. Unless, however, the exception to the rule applies – “work made for hire.”
What is “work made for hire?”
When a copyrightable work is made on someone’s behalf, whether it be an employer or third-party, it is a “work made for hire.” Under the “work made for hire” exception, the person (or entity) for whom the work is created is considered the copyright owner of the work, not the actual creator herself.
What does that mean for writers?
“Work made for hire” provisions typically are unfair to writers. Given the extreme potential for losing control of the copyright in the creative work, it is imperative that writers understand when a work qualifies as a “work made for hire” and when it does not.
Thankfully, the Copyright Act is helpful in defining the exception. A creative work qualifies as a “work made for hire” if:
- a work is created by an employee within the scope of the employee’s job; or
- a work is commissioned or specially ordered that is from nine eligible categories and a “work made for hire” agreement has been signed.
Work created for an employer
If an employee creates a work within scope of her employment, the employer owns the copyright.
A “work made for hire” agreement is not needed with an employer. The assumption is an employee has agreed to this arrangement when accepting the job. For example, if you take a salaried job as a reporter for an online journal, the reporter is expected to know the online journal will own the copyright in the works created on their behalf. The courts consider salary and employment benefits a fair exchange for the copyright in the work created for the job.
Who is considered an employee?
In order to answer this question, the courts look at a variety of factors. The major ones include whether employee benefits are provided, whether social security taxes are paid, and if the employer has the right to assign additional project to the employee. If these factors are present, an employer would own the copyright to any work created on the job. Whereas, independent contractors or freelancers who are not paid benefits and pay their own social security taxes, and are able to accept assignment from other unrelated parties, are not considered employees. Accordingly, the independent contractor would own the copyright to any work created for the job.
How is “scope of employment” defined?
For a creative work to be made in the scope of employment, the work must be pursuant to the writer’s duties as an employee. Is the creative work what the employee is paid to do? Is the work created within the general work hours at the place of work? Is the work created in part to serve the employer? If so, then it qualifies as work made for hire under the scope of ones employment. For example, I wrote my first novel while working as a lawyer with a biotech company. I was not hired to write the book. I was hired as a patent litigation attorney. The novel was not written during work hours or to serve my employer. Accordingly, the novel would not qualify as a “work made for hire.”
Unless the employee and employer have agreed in writing otherwise, anything created outside the scope of employment is not a “work made for hire,” and the employee automatically owns the copyright. An employer can, of course, agree to transfer its copyright ownership in the “work made for hire” to the employee. This agreement must be in writing and signed by both employer and employee.
Work commissioned or special ordered
If a person or entity requested a non-employee to create a work, that work is a “work made for hire” if the work is created under a written “work made for hire” contract and the work created falls within one of the following nine statutory categories:
- Freelance contributors to collective works – articles written for collective works like magazines, newspapers, encyclopedias, websites, or anthologies.
- A contribution used as part of a motion picture or other audiovisual work – screenplays.
- Compilations – work created by collecting and assembling preexisting materials or data, like an anthology.
- Instructional text
- Answer material for a test
- Supplementary works – like forewords, afterwards, pictorial illustrations, charts, maps, tables, appendices, and indexes. Basically, any work created to supplement another author’s work for illustrating, explaining, or assisting in the use of the underlying author’s work.
If the commissioned work does not fall within one of the above categories, a “work made for hire” agreement will usually not result in the work becoming one for hire. For example, a novel or book of non-fiction is not within the scope of the categories and not considered “works made for hire.”
“Work made for hire” agreements
If you are a freelance writer creating work in one of the above categories, it is important you understand the terms of any agreement proposed for creating the work. At the very least, clarify the contract terms before starting the project. Is there “work for hire” or “work made for hire” or “specially commissioned or ordered” language in the agreement? Does the check have an after-the-fact endorsement with such language in an attempt to re-characterize a work as “work made for hire?” If the agreement is not a “work made for hire,” does the agreement transfer the author’s copyright in the work?
Make sure the contract clearly defines the work to be created for the commissioning party. It is also helpful to include only one particular work in a contract. Avoid including language that ties future work or past work to the contract. Fall back language should also be included that states you own the copyright to the work should the commissioning party reject the work for any reason and not pay the agreed upon fee.
Work for hire writers who want credit for their work should request the commissioning party to give you credit. Otherwise, the commissioning party has no obligation to credit you.
Many freelance writers will not sign “work made for hire” agreements, or if they do, they request substantial compensation. Decide how important it is for you to retain any copyright interest in the work created. Magazine articles or op-ed pieces – maybe so. Technical writing, advertising copy, or annual reports – maybe not. Publisher and editors might forgo the “work made for hire” agreement but then request certain rights it might need to publish the work, and let the author retain the rest.
One side note about California, the laws consider someone who commissions a “work made for hire” as the employer and the freelancer as the employee. The purpose of the law is to require California companies to provide benefits like workers compensation, unemployment, and disability insurance. The unintended implication from a copyright standpoint is that California companies may not want to sign a “work made for hire” agreement. Instead, they may request the freelancer assign certain rights in the copyright needed for the project.
If a freelancer submits an article that is unsolicited, then by definition under the Copyright Act, the work does not qualify as a “work made for hire.” Any agreement post submission cannot change that fact. But an agreement post submission can be considered a transfer of the author’s copyright in the article to the publication.
Under the Copyright Act, the person who assembles the separate works can copyright the anthology. The collective copyright allows the person to reproduce and distribute each contribution as part of the collective work. They also can revise the collection (like adding or removing stories) but they cannot modify the separate works unless the author grants that right. If you are a contributing author to an anthology, be clear if the agreement makes your creative work a “work made for hire,” and if you have given the collective author the right to edit or revise your creative work. Decide in advance what rights you want to transfer to the person creating the collective work. Typically, most writers retain ownership in the copyright to their work (and you should), but give the collective author the right to reprint their work in the collective. If the collective author wants the right to edit or revise, that should be clear in your contract.
Work created outside the “work made for hire” parameters
If the work created is not pursuant to your job, or there is no “work made for hire” agreement, or the work does not fall within one of the above nine statutory categories, then the author of the article owns the copyright. But be aware, if someone pays you to write an article but no agreement has been signed, the person paying you has a nonexclusive license to use the article as intended, i.e., they can publish it. This does not prevent you, the author, from publishing or selling it elsewhere.
Duration of a “work made for hire” copyright
Copyright protection for “works made for hire” last 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. In contrast, the duration of copyrights for authors last the life of the author plus 70 years.
If you do not understand the provisions of a contract covering your creative work, consult an experienced publishing lawyer prior to signing. If you would like a few additional resources on the subject see:
- Copyright Office, “Works Made For Hire.”
- The Writer’s Legal Companion (Bunnin & Beren)
- The Copyright Handbook (Fishman)
- The Writer’s Legal Guide (Murray & Crawford)
- Mark Fowler, “Cultivating a Healthy Loathing for ‘Work Made For Hire’ Agreements,” Rights of Writers (blog), May 26, 2011.
- Lloyd Jassin, “What Every Publisher Should Know About The ‘Work For Hire’ Doctrine,”Copylaw (blog)
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