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Introduction to the work-made-for-hire doctrine in copyright

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

At our law firm, we represent employers, employees and independent contractors in disputes over ownership of copyrights to creative works conceived during working relationships between the parties. In these disputes, the issue is often whether the creative work is a "work made for hire." 

We also help such parties negotiate, draft or review agreements concerning their rights in such works.

Copyright work-for-hire basics 

When a creative work passes from a mere idea to its expression - i.e., it becomes fixed like an idea for a story reduced to its words or a song to its recording - the law automatically confers copyright to the author or composer of such a work. 

The federal Copyright Act, however, makes an exception to this broad ownership principal when an employee makes the work. Within the employee-employer relationship, if the employee creates a copyrightable work within the scope of employment and creating such a work is part of the employee's duties, copyright ownership vests in the employer as a "work made for hire." 

Legal disputes in this context over whether the creator actually was an employee are common. The U.S. Supreme Court has looked at several factors such as whether the employer provides employment benefits or withholds payroll deductions from the creator's pay as well as the degree of control the employer exercises over the creative process. Again, if the creator is an employee, the employer is the copyright owner because the work was authored in the course and scope of the employment relationship, unless the parties have entered into an enforceable contract providing otherwise. 

A work is made for hire also if it was "specially ordered or commissioned" for creation by an independent contractor for particular uses listed in the law: 

  • Contributions to collective works
  • Parts of motion pictures or similar audiovisual work
  • Translations
  • Supplementary works like an introduction to or comment about a written work
  • Compilations
  • Instructional texts
  • Tests
  • Answer materials for test
  • Atlases 

For this kind of work for hire, there must be an express, written, signed agreement to that end between the parties. 

Copyright protection of a work for hire is calculated differently (95 years from publication or 120 years from creation, whichever is reached first) than a normal copyright (author's life plus another 70 years). 

This is only an introduction to a complicated area of intellectual property law. An attorney can answer questions in an individual circumstance or ownership dispute. 

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