Omar Bennett
Work made for hire is a term used in copyright law to describe a work that is subject to copyright and is created by employees as part of their job or some limited types of work for which all parties agree in writing to the WFH designation. This doctrine is relevant to freelancers, as it determines whether they or their clients own the rights to their work. The work made for hire doctrine is a contentious issue for freelancers, as they may be asked to sign away their rights to future income from their work. While some freelancers may choose to work under work made for hire contracts to secure more work, others may prefer to retain their copyrights and negotiate license agreements with their clients.
| Characteristics | Values |
|---|---|
| Definition | Work made for hire (work for hire or WFH) is a term defined by US copyright law. |
| Copyright | The work made for hire doctrine states that the employer or commissioning company, not the creator, is the legal author and copyright owner of the work. |
| Applicability | The work made for hire doctrine only applies to copyrights and not other intellectual property rights such as patents, trademarks, or trade secrets. |
| Categories | For the doctrine to apply, the work must fall within one of nine limited categories, including "a contribution to a collective work", "a part of a motion picture or other audiovisual work", "a translation", and "an atlas". |
| Requirements | For work to be considered made for hire, it must be specially ordered or commissioned, and there must be a written agreement between the parties specifying that the work is made for hire. |
| Retroactivity | Retroactive contractual designation as a work for hire is not permitted; a valid agreement must be signed by both parties before the work is created. |
| Transfer of rights | In a work for hire agreement, the commissioning party owns all rights from the start, even if the contract is breached. In a copyright transfer agreement, the creator can withhold rights until all terms are fulfilled. |
| Freelancers | Freelancers can sign work for hire contracts and transfer copyright ownership to the client. However, they should ensure they are fairly compensated for the loss of future income and the risks associated with freelance work. |
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What You'll Learn
Freelancers can lose all rights to their work
To avoid losing all rights to their work, freelancers should ensure that they do not sign a "work made for hire" contract. Instead, they can license their work, granting clients usage rights while retaining ownership. Licensing is preferable for freelancers who want to reuse their work or maintain control over its use. However, for projects where the client requires full ownership, assigning all rights may be necessary.
Freelancers should also be aware of other legal issues they may face, such as taxes, insurance, and protecting their freelance business. They may also encounter issues such as plagiarism, copyright infringement, or unfair contract terms. To protect themselves, freelancers should use contracts that clearly define the scope of work, payment terms, intellectual property rights, confidentiality agreements, and termination conditions.
In addition, freelancers should be mindful of the type of work they are doing and the industry they are working in. For example, in the commercial art industry, all freelance platforms demand work-for-hire contracts. This means that illustrators and other graphic artists may find it difficult to find work if they do not agree to these types of contracts.
Overall, while freelancers have the freedom to choose the projects and clients they work with, they should be cautious about the rights they may be giving up and the legal issues they may encounter.
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Work for hire is a statutorily defined term
Work for hire is a doctrine created by US copyright law. Generally, the person who creates a work is considered its "author" and the automatic owner of the copyright of that work. However, under the work made for hire doctrine, your employer or the company that has commissioned your work is considered the author and automatic copyright owner, not you.
Work for hire agreements are less desirable for creators than copyright transfer agreements. Under a work for hire agreement, the commissioning party owns all rights from the very start, even if the contract is breached. Under a transfer of rights, the creator can hold back the rights until all terms of the contract are fulfilled.
If the work is created by an independent contractor or freelancer, it may be considered a work for hire only if the following conditions are met:
- The work must come within one of the nine limited categories of works listed in the definition, including a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas.
- The work must be specially ordered or commissioned.
- There must be a written agreement between the parties specifying that the work is a work made for hire by using the phrase "work for hire" or "work made for hire".
In 1999, a work-for-hire-related amendment was inserted into the Satellite Home Viewer Improvement Act of 1999. It specified that sound recordings from musical artists could be categorised as works for hire from the recording studios.
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Work for hire is less desirable than copyright transfer
In the world of copyright, the general rule is that the creator of a work owns the copyright to it. However, this is not always the case, as there are exceptions to this rule, including the "work for hire" doctrine. Under this doctrine, the employer or commissioning party is considered the legal author and automatic copyright owner of the work, instead of the creator.
The "work for hire" doctrine is less desirable for creators than a copyright transfer agreement. In a work-for-hire agreement, the commissioning party owns all rights from the very start, even if the contract is breached. On the other hand, a copyright transfer agreement allows the creator to hold back the rights until all terms of the contract are fulfilled. This can be a powerful tool to compel the commissioning party to fulfill its obligations.
For example, if a freelance illustrator signs a "work made for hire" contract with a company, the company becomes the legal author and copyright owner of the illustrator's work. The illustrator gives up any rights to future income from that work, including royalties. To compensate for this loss of future income and the risks and overhead associated with being a freelancer, the illustrator should set an appropriate assignment fee.
In contrast, if the illustrator retains the copyright through a copyright transfer agreement, they can negotiate with the company to fulfill its obligations. If the company fails to do so, the illustrator can withhold the rights to the work until the contract is fulfilled. This gives the illustrator more leverage and protection compared to a work-for-hire agreement.
To summarize, while the "work for hire" doctrine may provide some benefits in terms of clarity and ownership for commissioning parties, it is less advantageous for creators. Creators may find themselves at a disadvantage, giving up their rights and future income opportunities. Therefore, it is essential for freelancers and independent contractors to carefully review contracts and consider copyright transfer agreements to protect their interests and ensure fair compensation for their work.
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Work for hire is a doctrine created by US copyright law
"Work made for hire" is a doctrine created by US copyright law. Generally, the person who creates a work is considered its "author" and the automatic owner of the copyright to that work. However, under the work made for hire doctrine, the employer or company that has commissioned the work is considered the author and the automatic copyright owner, not the creator.
The work made for hire doctrine only applies to copyrights and not to other intellectual property rights, such as patents and trade secrets. For a work to be considered "work made for hire", it must meet specific criteria. Firstly, it must fall within one of the nine limited categories of works listed in the Copyright Act, including "a contribution to a collective work", "a part of a motion picture or other audiovisual work", "a translation", and "an atlas". Secondly, the work must be specially ordered or commissioned, and there must be a written agreement between the parties specifying that the work is a "work made for hire".
It is important to note that simply calling something a "work made for hire" does not change the Copyright Act laws or ownership of a copyright. If the work is created by an employee outside the scope of their employment or by a contractor, and it does not meet the identified categories, it will not qualify as a "work made for hire". In such cases, a written copyright assignment will be required to transfer the copyright ownership from the creator to the commissioning party.
The work made for hire doctrine has implications for freelancers and independent contractors. While it may be common for freelance platforms to use "work made for hire" contracts, it is important for freelancers to understand their rights and the potential loss of future income associated with transferring copyright ownership.
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Work for hire is common in the commercial art industry
Work-for-hire contracts are common in the commercial art industry. This is because, in the United States, work made for hire is a statutorily defined term (17 U.S.C. § 101) under copyright law. This means that the employer or company that has commissioned the work is considered the author and copyright owner, instead of the creator of the work.
In the commercial art industry, this applies to freelancers and independent contractors. For example, graphic artists, web designers, and illustrators often work under work-for-hire contracts. These contracts are common because they allow the client to own the artist's work and have full control over it, including the ability to publish and resell the rights to others.
However, this can be disadvantageous for the artist, as they give up any rights to future income from that work. Therefore, it is important for artists to understand the terms of these contracts and negotiate accordingly. Artists can, for example, request full assignment of rights or ensure that the transfer of copyright is conditioned on full payment.
To be considered a valid work-for-hire agreement, certain conditions must be met. Firstly, the work must fall within one of the nine limited categories listed in the definition. Secondly, there must be a written agreement between the parties specifying that the work is a work made for hire. Finally, the work must be specially ordered or commissioned.
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Frequently asked questions
“Work made for hire” is a doctrine created by US copyright law. Generally, the person who creates a work is considered its “author” and the automatic owner of the copyright to that work. However, under the work made for hire doctrine, your employer or the company that has commissioned your work is considered the author and automatic copyright owner, not you.
The client gets to own the copyright to the work and can use it as they see fit without having to pay any additional fees or royalties to the creator.
By giving the client copyright ownership, the creator gives up any rights to future income from that work. They also lose the ability to use the work for their own purposes or license it to other clients.
For a work to qualify as "work made for hire", it must meet certain statutory requirements. Firstly, it must fall within one of the nine limited categories of works, such as a contribution to a collective work, a translation, or a compilation. Secondly, it must be specially ordered or commissioned. Lastly, there must be a written agreement between the parties specifying that the work is a "work made for hire".
