Work for hire

A work made for hire (sometimes abbreviated as work for hire and WFH) 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.^{[citation needed]}

States that are party to the Berne Convention for the Protection of Literary and Artistic Works recognize separately copyrights 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 comics featuring characters such as Batman or Spider-Man, but the publishers hold copyrights to the work. In the case of articles published in academic journals, it is common for the publisher to require the authors to sign a copyright transfer, a short legal document transferring all author copyrights to the publisher. The authors retain moral rights in their work, and may also be granted by the publisher a license to distribute the article themselves (e.g., in the form of reprints and PDFs) or create derivative works from it (eg, to use illustrations from the article in future publications or presentations).

Law of the United States

Under U.S. law, the owner of a copyright in a work is the author. In most cases, this is the individual or group of individuals that creates the work. However, when a work is considered a work made for hire - more commonly called a "work for hire", abbreviated as "WFH" - the author of the work is no longer the individual creator or creators. Instead, the author is considered to be the entity that hired the creator of the work.^{[citation needed]}

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:

Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or 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. (17 U.S.C. sec 101)

The first situation applies only when the work's creator is an employee and not an independent contractor.^[1] 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".^[1] The distinction between an employee and an independent contractor can be difficult to analyze in some situations. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an "employer-employee" but the court left unclear which of these factors must be present to establish the employment relationship under the work for hire definition.^[1] However, all or most of these factors characterize a regular, salaried employment relationship, and so 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.^[1] Examples of works made for hire are a software program created by an employee programmer or ad copy created by a marketing department employee.^[2]

If a work is created by an independent contractor or freelancer (that is, someone who is not an employee), the work can be created as a work made for hire, or not. To be a work made for hire, all of the following conditions are required:

• the work must be specially ordered or commissioned;
• the work must come within one of the nine categories of works listed in the definition above;
• there must be a written agreement between the parties specifying that the work is a work made for hire.^[1]

The determination of whether a particular work is a work made for hire can be crucial to the hiring party's ability to utilize the created work. If a work is considered a work made for hire, the author and owner of the work is the hiring party. If the work is not a work made for hire, the hiring party has no copyright ownership in the work, and its ability to use the work would therefore depend either on the specific terms of its agreement with the author, or upon the concept of an implied license to use the work. If forced to rely on an implied license, the hiring party may find that it has only limited rights to alter, update, or transform the work for which it paid. For example, a motion picture feature may employ dozens of creators of copyrightable works (e.g. music scores, costumes, 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 hiring the creators as employees or as work-for-hire contractors.

Even when a work is not a work made for hire, the parties can agree to assign copyright rights from the author to the party paying for the creation of the work. Under certain circumstances, the creator may retain some rights to the material following this assignment, either through provisions of a contract surrounding the assignment or through statute. For example, the Copyright Act of 1976 and the Sonny Bono Copyright Term Extension Act of 1998 extended U.S. copyright terms and allowed creators of pre-existing works to reclaim the copyright when the previous shorter term would have expired.^{[citation needed]}

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.^[3]

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.^[4]

Copyright duration

In the United States a "work for hire" (published after 1978) attracts a special copyright duration: the shorter of 95 years from publication, or 120 years from creation; rather than the usual life of the author plus 70 years.^[5]

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),^[6][7] 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.^[8] (Copyright durations for works created before 1993 may be subject to transitional arrangements).^[9]

Further reading

• Landau, Michael. "Ownership Issues in Copyright Law" at the Internet Archive. Archived from Gigalaw.com April 2000. Accessed October 25, 2007. (Professor Landau is "a member of the GigaLaw.com Editorial Board and a professor of law at Georgia State University College of Law in Atlanta. He is head of the school's intellectual property curriculum group and a prolific writer and speaker on intellectual property and computer law topics. He is licensed to practice law in the state of New York.")

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)

External links

Copyright codes of various countries pertaining to WFH:

Sweden

• "Copyright" and "Trademark" in 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.
• "Definitions" 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.)

References