INTRODUCTION
Under the 1976 Copyright Act as amended (title 17 of the United States Code),
a work is protected by copyright from the time it is created in a fixed form.
In other words, when a work is written down or otherwise set into tangible
form, the copyright immediately becomes the property of the author who created
it. Only the author or those deriving their rights from the author can rightfully
claim copyright. Although the general rule is that the person who creates
a work is the author of that work, there is an exception to that principle:
the copyright law defines a category of works called works made for
hire. If a work is made for hire, the employer, and not
the employee, is considered the author. The employer may be a firm, an organization,
or an individual. To understand the complex concept of a work made for hire,
it is necessary to refer not only to the statutory definition but also to
its interpretation in cases decided by courts.
STATUTORY DEFINITION
Section 101 of the copyright law defines a work made for hire
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 aninstructional
text is a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional activities.
DETERMINING WHETHER A WORK IS MADE FOR HIRE
Whether or not a particular work is made for hire is determined by the relationship
between the parties. This determination may be difficult, because the statutory
definition of a work made for hire is complex and not always easily applied.
That definition was the focus of a 1989 Supreme Court decision (Community
for Creative Non-Violence v. Reid, 490 U.S. 730 [1989]). The court held
that to determine whether a work is made for hire, one must first ascertain
whether the work was prepared by (1) an employee or (2) an independent contractor.
If a work is created by an employee, part 1 of the statutory definition
applies, and generally the work would be considered a work made for hire.
IMPORTANT: The termemployee here is not really the same
as the common understanding of the term; for copyright purposes, it means
an employee under the general common law of agency. This is explained in further
detail below. Please read about this at Employer-Employee Relationship
Under Agency Law. If a work is created by an independent contractor
(that is, someone who is not an employee under the general common law of agency),
then the work is a specially ordered or commissioned work, and part 2 of the
statutory definition applies. Such a work can be a work made for hire only
if both of the following conditions are met: (1) it comes within one
of the nine categories of works listed in part 2 of the definition and (2)
there is a written agreement between the parties specifying that the work
is a work made for hire.
Employer-Employee Relationship Under Agency Law
If a work is created by an employee, part 1 of the copyright codes
definition of a work made for hire applies. To help determine who is an employee,
the Supreme Court in CCNV v. Reid identified certain factors
that characterize an employer-employee relationship as defined
by agency law:
1) Control by the employer over the work (e.g., the employer may
determine how the work is done, has the work done at the employers location,
and provides equipment or other means to create work)
2) Control by employer over the employee (e.g., the employer controls
the employees 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 employees assistants)
3) 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 employees payment)
These factors are not exhaustive. The court left unclear which of these factors
must be present to establish the employment relationship under the work for
hire definition, but held that supervision or control over creation of the
work alone is not controlling.
All or most of these factors characterize a regular, salaried employment
relationship, and 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).
Examples of works for hire created in an employment relationship are:
- A software program created within the scope of his or her duties by a
staff programmer for Creative Computer Corporation.
- A newspaper article written by a staff journalist for publication in the
newspaper that employs him.
- A musical arrangement written for XYZ Music Company by a salaried arranger
on its staff.
- A sound recording created by the salaried staff engineers of ABC Record
Company.
The closer an employment relationship comes to regular, salaried employment,
the more likely it is that a work created within the scope of that employment
would be a work made for hire. However, since there is no precise standard
for determining whether or not a work is made for hire under the first part
of the definition, consultation with an attorney for legal advice may be advisable.
WHO IS THE AUTHOR OF A WORK MADE FOR HIRE?
If a work is a work made for hire, the employer or other person for whom
the work was prepared is the author and should be named as the author in Space
2 of the application for copyright registration. The box marked workmade-
for-hire should be checked yes.
WHO IS THE OWNER OF THE COPYRIGHT IN A WORK MADE FOR
HIRE?
If a work is a work made for hire, the employer or other person for whom
the work was prepared is the initial owner of the copyright unless there has
been a written agreement to the contrary signed by both parties.
EFFECT ON TERM OF COPYRIGHT PROTECTION
The term of copyright protection of a work made for hire is 95 years from
the date of publication or 120 years from the date of creation, whichever
expires first. (A work not made for hire is ordinarily protected by
copyright for the life of the author plus 70 years.) For additional information
concerning the terms of copyright protection, request Circular
15a Duration of Copyright.
FOR FURTHER INFORMATION
Information via the Internet: Circulars, announcements, regulations,
other related materials, and all copyright application forms are available
via the Internet. You may access these on the Copyright Office homepage at
www.copyright.gov
Information by fax: Circulars and other information (but not application
forms) are available from Fax-on- Demand at (202) 707-2600.
Information by telephone: For information about copyright, call the
Public Information Office at (202) 707- 3000. The TTY number is (202) 707-6737.
Information specialists are on duty in the Public Information Office from
8:30 a.m. to 5:00 p.m., eastern time, Monday through Friday, except federal
holidays. Recorded information is available 24 hours a day. Or, if you know
which application forms and circulars you want, request them 24 hours a day
from the Forms and Publications Hotline at (202) 707- 9100. Leave a recorded
message.
Information by regular mail: Write to:
Library of Congress
Copyright Office
Public Information Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
Rev: Dec 2000
This electronic version has been altered slightly from the original printed
text for presentation on the World Wide Web. For a copy of the original
circular, consult the PDF
version or write to Copyright Office, 101 Independence Avenue S.E., Washington,
D.C. 20559-6000.