Businesses commonly hire workers, whether as employees or contractors, to create content or works subject to federal copyright laws. This step is often necessary when a business owner or individual cannot create the necessary work on their own. However, hiring a third party to create a work can make it unclear who owns the copyrighted work – the business, the employee, or the contractor? The answer lies in the “work made for hire” doctrine, which consists of a few small provisions in the federal Copyright Act.
Navigating the complexities of the Copyright Act and the work made for hire doctrine can be challenging. Protecting your creative efforts requires a clear understanding of when copyright protections apply and how ownership is determined. For tailored guidance on safeguarding your intellectual property, consider reaching out to a Fort Lauderdale copyright attorney at The Lomnitzer Firm P.A.—they can help you evaluate your rights and develop strategies to secure your creative works for the future.
Defining the Work for Hire Doctrine
The relevant portion of 17 U.S. Code §101 defines a “work made for hire” as “a work prepared by an employee within the scope of his or her employment.” As a result, if a non-employee creates work subject to a copyright, then it does not constitute a work made for hire within the meaning of the Copyright Act. Therefore, if a business owner does not pay himself as an employee creates a work, it is not a work made for hire. Likewise, if an independent contractor creates a work, it is not a work made for hire. Only an employee creating the work within the scope of his or her employment can create a work made for hire.
17 U.S. Code §201(b) states the following concerning a work made for hire:
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
Based on this provision, the only circumstance under which a business is a legal copyright owner is if an employee produced the work as a normal part of his or her duties. Otherwise, the actual creator of the work owns the copyright.
The Copyright Act contains no definition of “employee.” However, the U.S. Supreme Court addressed this issue in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), if only to clarify the analysis for determining whether a person is an employee falls under the “general common law of agency.” The Supreme Court identified several factors that form the basis for this analysis, but the most commonly present factors include the following:
The analysis of whether a work made for hire within the purview of the Copyright Act goes beyond whether the hired creator was an employee. Further analysis must determine whether a work was created within the scope of employment.
In considering whether a work was created within the scope of employment as required by the work made for hire definition, courts look at the following factors:
If your business wishes for an employee to create work that may be copyrighted, you should specify that creation as a part of the employee’s normal job duties in his or her job description. Furthermore, if you have any doubts as to employee status or copyright ownership, have the hired party sign a written assignment of the copyright.
On the other hand, if you are hiring a third party or non-employee to create work, you should always execute a “work for hire agreement” at the outset of the business relationship. However, business owners should keep in mind that even if they have a signed “work for hire agreement,” it may be insufficient to preserve copyright ownership for some types of works. Only specific categories of works can qualify for the work made for hire status. Therefore, an independent written assignment of the copyright is also necessary.
Not all creative works fall under the work for hire doctrine. The Copyright Act limits this designation to specific categories, such as contributions to collective works, audiovisual works, translations, compilations, instructional texts, tests and test answers, and certain other defined types. If your project doesn’t fit into one of these categories, even a signed “work for hire agreement” may not be enough to transfer ownership.
A work for hire agreement attempts to establish that the hiring party is the legal author of the work. A copyright assignment, on the other hand, is a separate contract in which the original creator transfers ownership rights to another party. Businesses often use both documents together to ensure their rights are fully protected, especially when working with independent contractors.
If ownership isn’t properly established, disputes can arise over who controls the work. These disagreements can lead to litigation, licensing complications, or lost opportunities to monetize the content. Clear agreements and proper documentation help prevent these conflicts and ensure that businesses can confidently use and protect the works they commission.
Safeguarding your creative work in today’s fast-changing digital environment requires more than inspiration—it demands a clear understanding of copyright law and the work for hire doctrine. The Lomnitzer Firm P.A. is committed to helping creators and businesses navigate these complexities, secure their rights, and protect the value of their intellectual property. To discuss your projects and explore tailored protection strategies, contact a Miami copyright attorney at (800) 853- 9692 or reach out to us online today.
