Beware of Work-for-Hire Nuances

The term “work-for-hire” is often loosely used to refer to an agreement with an author, musician, or other independent contractor to create a copyrighted work.  “Work-for-hire” agreements are routinely entered for the purpose of vesting ownership of the work with the party paying for the work.  The term “work-for-hire” has a precise meaning under the U.S. Copyright Act, and if care is not used to properly draft the agreement, the partying paying for the work may not legally own all rights to the work. 

Section 101 of the U.S. Copyright Act defines a work-for-hire as a work prepared by an employee within the scope of employment or any of nine types of commissioned works where the parties have a written instrument agreeing that the work will be a work-for-hire.  The nine types of commissioned works are:

  1. A contribution to a collective work,
  2. A part of a motion picture or other audiovisual work,
  3. A translation,
  4. A supplementary work,
  5. A compilation,
  6. An instructional text,
  7. A test,
  8. Answer material for a test, or
  9. An atlas.

If a work is prepared by anyone other than an employee and it does not fall within any of the nine types of works, then the work is not a work-for-hire.  If a work does not qualify as a work-for-hire, language in an agreement describing the work as a work-for-hire will be invalid.  Any such agreement that relies on work-for-hire status to determine ownership will not vest copyright ownership in anyone other than the creator of the work.  This may lead to shock and surprise when the party paying for the work realizes he or she does not own the work.  In that situation, the creator of the work would be free to use the work in other projects as the copyright owner. 

To prevent this from happening, agreements with authors, artists, computer programmers, musicians, and other creatives should be carefully prepared to make sure that the party commissioning the work or paying for the work receives what he or she expected.  This could involve a simple analysis to make sure the work is one of the nine types of “works-for-hire” or it could require revising the agreement to include appropriate ownership provisions.  Failure to exercise care in this area could result in unexpected legal consequences and a loss of important rights.     

This article is provided for general information and should not be relied upon as legal advice for a specific situation. If you are in need of specific advice or legal representation, please do not hesitate to contact us.

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