What is a “Work Made for Hire?”
If you’ve been around the block more than once, you’ve probably heard the phrase “work made for hire.” It’s pretty common in the blogging world and a lot of bloggers think they understand it. Chances are they’re wrong. Few people, even lawyers, really understand what the “work made for hire” doctrine is, what it covers and, most importantly, what it does not cover. Most people think that “work made for hire” is a legal rule that can automatically transfer ownership of creative content from one person or company to another. While that is true in a few cases, it is not true for many, many situations – including the ones you are most likely to encounter.
So, buckle up, it’s going to get a little tricky but if you stick with me, you’ll be glad you did.
“Work Made for Hire” Applies in Very Limited Situations.
Most people think that anytime someone is paying you to create something, it’s a “work made for hire” situation. This is a common myth and it’s important to remember that, in general, there are really only two situations where “work made for hire” is actually a thing. If you don’t fall into one of the following scenarios or categories, there is no “work made for hire” and the regular rules of copyright ownership are in force.
1. Are You an Employee?
First scenario. If you are an employee (not a contractor, a real employee – think W-2, W-4) and you have been hired to create for the company, then you are likely in a “work made for hire” situation and your employer will be deemed the “author” or creator of whatever you create.
In this case, your employer will also have the right to claim ownership of your creative output via copyright registration. Basically, the products of your creative efforts are owned by your employer and you don’t own them at all. This happens “automatically” and you don’t have to sign a contract or other document to transfer ownership.
2. Are You an Independent Contractor?
Second scenario. Under certain circumstances and, for a few very narrow categories of creative efforts, a “work for hire” situation may exist for an independent contractor. Specifically, if you’re an independent contractor working under a “work made for hire” contract and you’re working in at least one of the following nine areas under the contract, you have likely created a “work made for hire” situation –
- a contribution to a collective work (like an article for a magazine, collection, or reference work);
- a part of a motion picture or other audiovisual work;
- a translation from one language to another;
- a supplementary work (an index, appendix, glossary, etc.);
- a compilation (assembling an anthology, database, or other collective work);
- an instructional text (something that might be part of a textbook);
- a test;
- answer material for a test; and
- an atlas.
Why Does This Even Matter?
So now we cut to the chase. It’s important to understand the “work made for hire” doctrine if you are creating cool stuff or if you are hiring someone to create cool stuff for you. Is your web designer an independent contractor, designing and creating your website? Well, if you’re relying on the “work made for hire” doctrine to transfer ownership of the website materials to you, you may be disappointed to find out that your web designer owns your website materials. Not a happy situation, is it? To ensure that you own the materials produced by an independent contractor, you will want to have a contract in place that specifically assigns the website materials to you.
On the other side of the same coin, if you’re a designer or creative contractor creating content or materials for someone else, and you don’t want to transfer ownership, you’ll want to be very careful about the language in any contract that you sign. You may want to offer a license to your work and not assign the work to your client. If your contract uses the word “assign” to describe your work, then you are likely transferring ownership of your work to your client. So long as that’s what you intended, no problem. If that’s not what you intended, you need to change the contract before you sign it.
So, there you have it. If everyone creating content for you is your employee, you probably have no worries, the “work made for hire” doctrine likely applies. If an independent contractor is involved in generating creative content, you’ll want to look at the language in the contract very carefully because that will determine who owns the materials once created. Make sure the materials have been assigned to you, if you are supposed to own them at the end of the day.
You now know more about “work made for hire” doctrine than you probably want to but it may save the day for you so keep these important tips in mind.
Remember – Be Smart. Be Legal.
Disclaimer – Yes, I’m a lawyer, but I’m not your lawyer. All information in this post is provided for educational purposes only and should not be considered legal advice for any specific person or any specific situation.