What is a Work-for-Hire?
A “work made for hire” (“work-for-hire”) is a work created by an employee as part of her or his job and, in some circumstances, an independent contractor, where all parties agree in writing that the work created by such an indepedent contractor should be considered a work-for-hire. A work-for-hire is considered authored by the employer (or party hiring the independent contractor) for copyright purposes rather than by the employee/contractor.
Under the United States Copyright Act of 1976 (the “Copyright Act”), a “work prepared by an employee within the scope of her or his employment” is automatically considered a work-for-hire. In addition, under the Copyright Act, a work created by an independent contractor, under certain circumstances and as set out in a contract, is considered a work-for-hire.
Work-for-hire designations can be invaluable to business entities that wish to own the copyrights in works that they paid a third party to make. Without such a designation, copyright authors retain the right to revoke any transfer of copyrights after 35 years from the date of such transfers. Given the inherent advantage in work-for-hire designations, business entities should include work-for-hire provisions in agreements wherever possible.
How to Establish a Work-for-Hire Relationship with an Independent Contractor
Contracting parties can only designate copyrightable works as works-for-hire under certain circumstances. In the absence of an employer/employee relationship, only certain works can contractually be designated as works-for-hire, such as “a work specially ordered or commissioned for use as a contribution to a collective work.” For example, a software contractor’s work on a group coding project can be a work-for-hire if such a provision is included in the subject contractor’s software/hardware development agreement.
Business entities should note that, in certain instances, courts are still split about classifying individuals as independent contractors vs. employees. Given the risks involved if a work-for-hire relationship is deemed not to exist, it is vital that any contractual work-for-hire provisions include clauses that ensure a complete copyright transfer where a court or other adjudicator of fact determines that work-for-hire provisions do not apply.
Making Work-for-Hire Work for You
Without properly drafted work-for-hire and copyright transfer provisions, business entities commissioning works from third parties may leave themselves without sufficient intellectual property rights in the works purchased.
Accordingly, it is highly recommended that business entities retain qualified legal counsel to ensure that any work-for-hire provisions that they intend to or currently use are drafted and/or revised to ensure that business entities receive the broadest and most complete ownership rights possible.
If you are interested in learning more about this topic or require the preparation, revision, and/or negotiation of work-for-hire agreements, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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This blog post was originally published in 2016, and updated on November 5, 2021.
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