The author of any creative work—such as a musical composition, story, or software code—acquires the copyright in it as soon as the work is fixed in any tangible medium. In other words, generally, the author of a creative work is the automatic copyright holder to it. Under the "work made for hire" doctrine, however, ownership transfers from the author to the company that has commissioned it.
If you work in a creative field, then it is critical that you define your role and rights with regard to your work product. A work made for hire agreement can accomplish this for you.
More about copyright
Before delving deeper into the world of work made for hire agreements, it's important to understand what copyright protection encompasses. The owner of a copyright retains the exclusive right to reproduce, prepare derivative works, distribute, perform publicly, or display the work.
These rights last until the author's death plus 70 years, except for works for hire and those made either anonymously or under a pseudonym, in which case protections lasts for the later of 120 years after original creation or 95 years after first publication.
The concept of work made for hire arises when you are creating copyrighted work while employed by, or as an independent contractor to, an employer or company.
Determining whether work made for hire applies
Perhaps the most important thing to know about work made for hire is that it isn't considered as such under the law simply because a work made for hire clause in the contract says it is so.
Instead, U.S. copyright law provides that a work is "work made for hire" only when the work is prepared by an employee within the scope of employment, or is specially commissioned from an independent contractor through a written agreement and the work falls into one of nine categories as defined by statute:
- Contribution to a collective work
- Part of a motion picture or other audiovisual work
- Translation
- Supplementary work
- Compilation
- Instructional text
- Test
- Answer material for a test
- Atlas
Because of these provisions in the law, employers may seek to classify freelancers as employees, but the law has strict tests to determine whether someone is an independent contractor or an employee. Generally, a court would consider whether the work is the kind an employee would normally perform, whether the work is performed substantially within working hours, and whether the work is done, at least in part, to serve the employer.
You may have noticed, in the above list concerning independent contractors, that several types of creative works for which companies often hire outside personnel are not included, such as website text, logos and banners, and computer software. To transfer copyright ownership for these types of works, a proper agreement would include the assigning of rights from the creator to the company in what is commonly called a "copyright assignment clause."
As a copyright owner, you may wish to transfer some rights of your copyright to another party for a limited use. The way you can accomplish this is by signing a written copyright licensing agreement, giving permission to someone else to use your work for a limited purpose and/or for a limited time.
Overall, the matter of who retains the copyright in a creative work should be something covered in a contract with every client you serve. Whenever you're entering an agreement with someone to create something for them, your best bet is to define your role—and your copyright rights—up front.
