Work-for-hire

In copyright law, a work made for hire (work for hire or WFH) is a work whose copyright is initially owned by an entity other than the actual creator as a result of an employment relationship or, in some cases, a commission. It is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work.

In the United States, United Kingdom, and several other jurisdictions, if a work is created by an employee as part of their job duties, the employer is considered the legal author or first owner of copyright. In some countries, this is known as corporate authorship. The entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.

The work for hire doctrine originated in United States copyright law, but other countries have adopted similar legal principles. In the jurisprudence of the United Kingdom and India, the hiring party is referred to as the first owner of copyright.

In the United States

Definition

Since the passage of the Copyright Act of 1976, a "work made for hire" has been defined in the copyright statute as either:

The United States Copyright Office refers to the person or entity for whom the work is created as the ''hiring party''. On copyright registrations, the hiring party may be referred to as an "employer for hire."

History

Early doctrine and the Copyright Act of 1909

The work for hire doctrine was first recognized by the Supreme Court of the United States in '' Bleistein v. Donaldson Lithographing Co.'' (1903), a case regarding the copyrightability of advertisements created by employees of a lithography company. The Court upheld the employer's ownership of the works, implicitly recognizing that works created by employees in the course of their duties could be owned by the employer.

The doctrine was later codified in the Copyright Act of 1909: "...the word 'author' shall include an employer in the case of works made for hire." Although the 1909 Act did not explicitly define the term "work made for hire", courts began to apply what became known as the "instance and expense" test. According to this standard, if a work was created at the request and cost of the hiring party, that party was presumed to own the copyright. In addition, the Act did not expressly address commissioned works, which left a broad scope for interpretation. Courts extended the doctrine to cover not only employees but also independent contractors, particularly in industries like illustration and music publishing.

The " teacher exception", an exception to the work-for-hire doctrine for faculty members at colleges and universities, was articulated in a series of court cases under the 1909 Act. For example, in ''Williams v. Weisser'' (1969), UCLA anthropology professor B.J. Williams successfully asserted common-law copyright in the content of his lectures against a company that was selling lecture notes to his students. In justifying Williams' copyright ownership of the lecture contents, the court explained: "No reason has been suggested why a university would want to retain ownership in a professor's expression. Such retention would be useless except possibly... for making it difficult for the teacher to give the same lectures, should he change jobs." It also cited precedent from the English court system, including the cases ''Abernethy v. Hutchinson'' and ''Caird v. Sime'', establishing that professors and lecturers held common-law copyright to their lecture materials.

Under the 1909 Act, copyrights lasted for an initial term of 28 years, but could be renewed for another 28 years. For most works, even if an author had assigned all of their rights to another entity, such as a publisher or record company, during the first term, the copyright would automatically revert to the author at the beginning of the renewal term. In the case of works made for hire, there was no automatic reversion, and the renewal copyright vested in the current owner of the copyright, whether the original hiring party or someone who had obtained the copyright from them.

1960s–70s copyright law revision

The work-for-hire doctrine was revamped during the copyright law revision efforts of the 1960s, which culminated in the Copyright Act of 1976. After extensive negotiations supervised by Congress and the Copyright Office, representatives of authors, composers, book and music publishers, and motion picture studios settled on the two-pronged approach now enshrined in the 1976 Act, which encompasses both works made by employees and certain types of specially ordered and commissioned works:

* contributions to collective works, such as periodicals, anthologies, and encyclopedias;: "A 'collective work' is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole."
* parts of motion pictures and other audiovisual works;
* translations;
* supplementary works, such as forewords, afterwords, and illustrations for books;
* compilations;
* "instructional texts", including any "literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities";
* tests and associated answer material; and
* atlases.: "(2) a work specially ordered or commissioned for use... an 'instructional text' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

The question of whether each type of work should be eligible to be commissioned as a work made for hire hinged on the benefits and drawbacks of making them subject to the author's right to terminate a transfer of copyright. Introduced in the 1976 Act as a spiritual successor to the automatic reversion of renewal copyright, the termination right allows authors to reclaim copyrights to their works if they originally owned the copyrights. This provision does not apply to works originally created under work-for-hire arrangements.

During these negotiations, each of the nine categories was proposed by a particular copyright-based industry. Works in these categories tended to be done by freelance authors at the instance, direction, and risk of a publisher or producer, and it was argued that it would be unfair to allow such authors to terminate assignments of rights. Additionally, motion pictures and collective works were customarily created by large groups of people, and companies argued that allowing rights in these works to revert to individual contributors would risk fragmenting ownership and jeopardizing the companies' long-term ability to commercialize the works.

Sound recording debate

Although copyright protection for sound recordings was being contemplated contemporaneously with the mid-1960's debate over works made for hire, they were never proposed or considered for inclusion as a category in the specially ordered or commissioned work made for hire provision. Former Register of Copyrights Marybeth Peters speculated that "record companies did not seek to include sound recordings" among these categories because they were typically produced in recording studios where record companies exercised considerable control over the production process. This allowed record companies to assert that featured artists were "employees" creating the sound recordings in the course of an employment relationship, satisfying the first prong of the 1976 work-for-hire definition.

In November 1999, a work for hire–related amendment was inserted into the Satellite Home Viewer Improvement Act of 1999, adding sound recordings to the list of categories that could qualify as specially commissioned works made for hire. This resulted in backlash from recording artists, who voiced concern that the amendment would strip them of their termination rights in sound recordings transferred to record labels. Record companies argued that it was a technical amendment that merely clarified how existing law applied to industry practice, since the majority of sound recordings would have already qualified as contributions to collective works (albums). However, in a 2000 testimony before the House Judiciary Committee, Peters speculated that the amendment might "prove to be anything but technical" if the music industry shifted to newer distribution models in which individual tracks could be unbundled from albums and downloaded separately.

In August 2000, the Recording Industry Association of America, representing record labels, and the Recording Artists' Coalition and other groups representing recording artists jointly agreed to recommend the repeal and retroactive cancellation of the work-for-hire amendment. Congress repealed the amendment via the Work Made for Hire and Copyright Corrections Act of 2000, which also stipulated that the amendment should be treated as if it never happened.

Works created by employees

If a work is created by an employee, the first prong of the work-for-hire definition applies. 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. To help determine who is an employee, the Supreme Court in ''Community for Creative Non-Violence v. Reid'' identified certain factors that characterize an employer–employee relationship as defined by agency law:

# Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer's location, and provides equipment or other means to create work)
# Control by employer over the employee (e.g., the employer controls the employee's schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee's assistants)
# Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee's payment)

Business owners and startups

In ''Woods v. Resnick'' (2010), the Western District of Wisconsin found that a business owner is neither an employee nor an independent contractor for copyright purposes. Since "an owner has an inherent right to control the business", the owner cannot be considered an agent, let alone an employee, so the work for hire doctrine does not apply to them.

Where startup 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.

Teacher exception

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.

Analogy to works of the United States government

Works created by officers and employees of the United States federal government as part of their official duties are not subject to copyright protection in the United States. House Report 94-1476, published in connection with the Copyright Act of 1976, explains that "although the wording of the definition of 'work of the United States Government' differs somewhat from that of the definition of 'work made for hire,' the concepts are intended to be construed in the same way." Cases regarding the status of works prepared by employees of the U.S. government have been cited in work-for-hire cases: for example, in ''Williams v. Weisser'', a case establishing the teacher exception, the court discussed ''Sherrill v. Grieves'', in which a book written by a professor at a U.S. Army officers' school for a course he was teaching was held not to be a "publication of the United States Government" under the Copyright Act of 1909.

Commissioned works by non-employees

If a 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 by use of the phrase "work for hire" or "work made for hire."

In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though not signed, before the work begins.

According to case law, retroactive contractual designation as a work for hire is not permitted. Furthermore, a valid work-made-for-hire agreement must be signed by ''both'' parties (the creator of the work and the commissioning party who is to be considered the author).

When relying on agreements in which creators transfer rights to a hiring party (copyright transfer agreement), a hiring party often finds that it has only limited scope to alter, update, or transform the work. For example, a motion picture may hire dozens of creators of copyrightable works (e.g., music scores, scripts, sets, sound effects, costumes) any one of which would require repeated agreements with the creators if conditions for showing the film or creating derivatives of it changed. Failing to reach agreement with any one creator could prevent the showing of the film entirely. To avoid this scenario, producers of motion pictures and similar works require that all contributions by non-employees be works made for hire.

On the other hand, a work for hire agreement is less desirable for creators than a copyright transfer agreement. Under work for hire, the commissioning party owns all rights from the very start even if the contract is breached, whereas under a transfer of rights, the creator can hold back the rights until all terms of the contract are fulfilled. Holding back the rights can be a forceful tool when it is necessary to compel a commissioning party to fulfill its obligations.

Termination of copyright transfers

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, Oregon. Unlike most works of public art, Kaskey has put strong prohibitions on the use of images of the statue, located atop the main entrance to 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 and souvenirs from one of its most iconic landmarks.

An author can grant his or her copyright (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).

Relationship to author accreditation

Accreditation has no impact on work for hire in the US. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. States that are party to the Berne Convention for the Protection of Literary and Artistic Works recognize separately copyrights and moral rights, with moral rights including the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work.Berne Convention Article 6bi

.

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.

In other countries

Some other countries have laws governing the initial copyright ownership of commissioned works or of works created within the scope of an employee's duties:

Commonwealth countries

United Kingdom

Under the copyright law of the United Kingdom, the first owner of copyright in a work may be the employer of the person who created it:

The expression "in the course of employment" is not defined in the Copyright, Designs and Patents Act, but in settling disputes, UK courts usually evaluate whether the employee created the work under a "contract of service" (e.g. as an employee) or a "contract for services" (e.g. as a freelancer or independent contractor). This statute has been compared to the work for hire doctrine in the United States.

There is currently no provision for initial ownership of copyright in commissioned works to vest in the hiring party; however, prior to 1 August 1989, "the copyright in photographs, portraits and engravings (and only those types of work) which were created as a result of a commission were owned by the commissioner." Under current law, the first owner of copyright in any commissioned work is the person or organization that created it, but there may be an implied non-exclusive license for the hiring party to use the work for the purpose for which it was commissioned.

Canada

Section 13 of the Canadian '' Copyright Act'' provides that the first owner of the copyright in a work is typically the author, except that the copyright for a work made in the course of employment initially vests in the author's employer:

Prior to June 29, 2012, Section 13(2) provided that the first owner of the copyright in commissioned engravings, photographs, and portraits was the person who paid for the works to be made:

This provision was repealed by the '' Copyright Modernization Act'', which received royal assent on June 29, 2012.

India

As in the UK, the work for hire doctrine in India is based on the concept of the ''first owner of copyright''. Under section 17 of the Copyright Act, 1957, the first owner of the copyright in a work is the author, except in the following cases:

* Copyright in a work made by an employee under a contract of service or apprenticeship vests in the employer, unless the employer and employee agree otherwise. Special rules apply for literary, dramatic, and artistic works created by an employee of a newspaper, magazine, or other periodical.
* If a photograph, painting, portrait, engraving, or film is made "for valuable consideration at the instance of" another person, that person is the first owner of copyright unless agreed otherwise.
* Generally, the first owner of copyright in a speech is the person delivering the speech. However, if that person is giving the speech on behalf of another person, that person is the first owner of the copyright.
* For works made by the government of India, any "public undertaking" of the Indian government, or an international organization, the first owner of copyright is the organization that produced the work.

Ethiopia

Under the ''Proclamation No. 410/2004 on Copyright and Neighboring Rights Protection'', Article 21/4 ( Federal Negarit Gazeta):

Philippines

The copyright law of the Philippines provides for allocation of copyright ownership between employees and employers:

However, when a work is "commissioned by a person other than an employer of the author", the law provides the client with ownership of the physical copy of the work, but the copyright to the work remains with the creator unless there is a written agreement to the contrary. (8293/2015 Section 178.4)

Copyright duration

United States

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, 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.

European Union

In the European Union, even if a Member State provides for the possibility of a legal person to be the original rightholder, 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.)In the UK see for example Copyright law of the United Kingdom, and links from that page.

An exception is for scientific or critical editions of works in the public domain. Per article 70 of the German copyright law, 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,

See also

* Copyright Act of 1976 (U.S.)
* Copyright, Designs and Patents Act 1988 (CDPA; UK)
* Copyright law of the European Union
* Derivative work
* World Intellectual Property Organization (WIPO)

References

Further reading

*

*

External links

Copyright codes of various countries pertaining to Work For Hire:
; Ireland

Copyright and Related Rights Act, 2000
; Sweden

"Copyright" and "Trademark" in Sweden

; United States
*

"Works Made for Hire under the 1976 Copyright Act"
Works Made For Hire Complete.


in USC section number 101 of Title 17 of U.S. Code. Provides definitions of various kinds of "Work for hire"; "Derivative work" 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 WIPO. (Searchable site)

UNESCO Collection of National Copyright Laws

{{DEFAULTSORT:Work For Hire
Copyright law