What Is a Work Made for Hire?

A work made for hire is a work whose author, for copyright purposes, is the employer rather than the individual creator. When an employee creates a work within the scope of employment, the work is a "work made for hire," and the employer is considered the author from the start (17 U.S.C. §§ 101, 201(b)). No assignment document is needed; ownership vests in the employer automatically, unless the parties expressly agree otherwise in a signed writing. Disputes usually turn on whether the creator was an employee acting within the scope of employment. Courts consider factors such as the hiring party's right to control the work, who supplied the tools, where and when the work was done, and how the creator was paid and taxed (Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)).

Certain specially commissioned works can also be works made for hire, but only if the work falls within one of the specific statutory categories enumerated in 17 U.S.C. § 101(2) and the parties sign a written agreement expressly so providing. Software commissioned from a contractor, for example, is not among the categories and generally does not qualify; it needs an assignment instead. Independent contractors otherwise own what they create unless ownership is transferred in a signed writing, and "work for hire" language in a contractor agreement does not transfer ownership unless the work falls within a statutory category, although courts may treat it as evidence of an intent to assign.

Pinpoint: 17 U.S.C. § 101; 17 U.S.C. § 201(b). Related term: Work Made for Hire.

Sources.

• 17 U.S.C. § 101: definitions, including work made for hire. law.cornell.edu
• 17 U.S.C. § 201: ownership of copyright, including works made for hire. law.cornell.edu

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