Understanding Work Made for Hire and Who Owns a Work Created in the Course of EmploymentDifferent Countries, Different Laws Each country uniquely approaches copyright ownership in employment and commissioned works. With no international standard, you must look towards your own country's copyright laws to determine
what copyright laws apply to your own situations. Being aware of ownership rules in other countries is also helpful if you are commissioning work from another country or vice versa, or working with a consultant from elsewhere (or providing consulting services elsewhere). This LEH-Letter focusses on the U.S. work made for hire provision. U.S. Work Made for Hire In the U.S., copyright generally belongs to the author. However in employment or what is referred to as “work made for
hire” situations, the employer or other person for whom the work was prepared is considered the author and owner of the copyright. This is true unless the parties have expressly agreed otherwise in writing. A work made for hire is defined in the U.S. Copyright Act, section 101 as: (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. For the purpose of the foregoing sentence, a “supplementary work” is 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; and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in
systematic instructional activities. Who is an Employee? To determine whether a work is made for hire, one must first determine whether the work was prepared by an employee or by an independent contractor. Certain factors will help determine whether an author is an employee such as: direction over the creation of the work given by the employer, where the work was performed, on whose equipment the work was created, control by employer over the employee’s schedule,
method of payment, and whether the employer withholds taxes from, and provides benefits to, the employee. This is not a precise method to determine an employee and any determination is based on examining several factors. Often, there are gray areas and if discussed in advance and set out in a written agreement, may provide certainty in the future. As an example, a school teacher who prepares lessons for classes she teaches is likely working within her employment duties and her employer/educational institutional will likely own the copyright in those lessons. At the other extreme, if this same teacher writes a fiction book in the evenings, that is not part of her employment duties,
and she will own the copyright in that book. Less clear is where the teacher decides on her own, to develop a software program, mostly in the evenings but occasionally during work hours, incorporating some of her lessons and also using original material. This latter situation is one which could clearly benefit from discussion and a written ownership agreement in advance. Is your Commissioned Work a Work for Hire? A non-employee or commissioned work may also be a work made for
hire if the work is one listed above in section 101 and there is a written agreement between the parties specifying that the work is a work made for hire.
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