Eleanor Finch
The concept of work for hire is a doctrine created by US copyright law, where the employer or commissioning party is considered the author and copyright owner of a work, rather than the individual or organisation that created it. This is distinct from the standard US copyright term, which covers the life of the author plus 70 years. Works made for hire receive copyright protection for 120 years after creation or 95 years after publication, whichever comes first. This concept is particularly relevant for literary works, where authors may grant their copyright to the hiring party, and works published in academic journals or created by freelancers are not generally considered works for hire. The work for hire doctrine is also recognised in other countries, such as the UK and India, with some variations in their respective copyright laws.
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What You'll Learn
Works published in academic journals
In the United States, the "work for hire" doctrine is a creation of U.S. copyright law. Typically, the person who creates a work is considered its "author" and the automatic owner of the copyright. However, under the "work for hire" doctrine, the employer or company that commissioned the work is considered the author and copyright owner, rather than the individual who created it.
The "work for hire" doctrine only applies to works created by employees within the scope of their employment or when there is a contract in place. If an individual is not an employee, their work can only be owned by their client as a "work for hire" if the client specifically ordered or commissioned it.
In the context of academic journals, authors are often not employees of the publisher and may not have a contract that establishes a "work for hire" relationship. Therefore, the authors of these works typically retain their copyrights and can grant certain rights to the publisher through a copyright transfer agreement.
It is important to note that the treatment of copyrights and "work for hire" arrangements may vary across different countries and jurisdictions. For example, in the United Kingdom, the first owner of the copyright in a literary, dramatic, musical, or artistic work created by an employee may be the employer, subject to any contrary agreements.
In summary, works published in academic journals are typically not considered "works made for hire", and the authors of these works generally retain their copyrights, subject to any specific agreements or transfers they make with the publisher.
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Works created by freelancers for magazines
Generally, the person who creates a work is considered its "author" and the automatic owner of the copyright to that work. However, in the case of works made for hire, the employer or the commissioning company, not the individual, is considered the author and the automatic copyright owner of the work.
Articles published in academic journals or work produced by freelancers for magazines are not generally considered works made for hire. This is why publishers often require the copyright owner, the author, to sign a copyright transfer agreement, a short legal document transferring specific author copyrights to the publisher. In this case, authors retain those copyrights in their work not granted to the publisher.
In the United States, a work for hire published after 1978 receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard US copyright term, which is the life of the author plus 70 years. Works published before 1978 have no differentiation in copyright term between works made for hire and works with recognised individual creators.
In the UK, the work for hire doctrine is based on the concept of the first owner of the copyright. Under section 17 of the Copyright Act, 1957, the first owner of the copyright in a work is the author, except in the case of works made by an employee under a contract of service or apprenticeship, in which case the employer is the first owner of the copyright. Special rules apply for literary, dramatic, and artistic works created by an employee of a magazine or other periodical. If a photograph, painting, portrait, engraving, or film is made "for valuable consideration at the instance of" another person, that person is the first owner of the copyright unless agreed otherwise.
Examples of magazines that accept freelance work:
- American Craft Magazine
- Threads Magazine
- Teacher Magazine
- Family Fun
- Working Money
- ADDitude Magazine
- Fun for Kidz
- Girl's Life
- High Five
- Hemispheres
- Afar
- The Robora
- Refinery29 Australia
- Travel + Leisure
- Fortune
- Cosmopolitan
- Good Housekeeping
- Glamour
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Works created by an employee outside the scope of their employment
In the United States, the "work for hire" doctrine, created by US Copyright Law, states that the employer or commissioning party is considered the "author" and copyright owner of a work created by an employee. This means that the employer owns the intellectual property rights to the work, not the employee who created it. This applies to works created within the scope of an employee's regular duties or employment.
However, if an employee creates a work outside the scope of their regular employment duties, the situation becomes more complex. In this case, the work may not be considered a "work for hire", and the employee may retain the intellectual property rights. To address this scenario, employers often obtain an assignment of intellectual property rights from employees, stating that any work produced during the course of employment, regardless of whether it falls within the scope of regular duties, is assigned to the employer.
It is important to note that the specific laws and regulations regarding intellectual property ownership may vary by country and industry. For example, in the UK and India, the first owner of the copyright in a literary work is generally the author, unless it is a work made by an employee within the scope of their employment, in which case the employer owns the copyright.
To ensure clarity and protect their interests, both employers and employees should include explicit provisions regarding intellectual property ownership in employment contracts and policies. Employees should also be aware of their rights and understand the impact of their employment agreements on their intellectual property rights.
In summary, while the "work for hire" doctrine generally assigns intellectual property rights to the employer, works created by employees outside the scope of their employment may require separate agreements or assignments to ensure that ownership is transferred from the employee to the employer.
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Works created by a contractor outside the identified categories
In the context of copyright law, a "work made for hire" refers to a work where the employer or commissioning party is considered the "author" and owns the copyright, rather than the individual or organisation that created the work. This doctrine is particularly relevant in the United States, where it is enshrined in copyright law, and in countries with similar legal systems, such as India and the United Kingdom.
In the US, for a work to be considered "made for hire," it must meet specific criteria. Firstly, there must be a written agreement between the parties involved, explicitly stating that the work is considered a "work made for hire." Secondly, the work must fall within one of the nine statutory categories outlined in the Copyright Act. These categories include instructional texts, contributions to a collective work, translations, and more.
However, it's important to note that simply calling a work "made for hire" does not automatically change the ownership of the copyright. If the work is created by an employee outside the scope of their employment or by a contractor, it must also fall within one of the identified categories to qualify as a "work made for hire." This qualification is essential for copyright ownership purposes.
In the case of contractors, the situation is even more specific. Typically, independent contractors do not have work-made-for-hire protections. For a contractor's work to be considered "made for hire," there must be a written agreement in place that outlines the contractor relationship and includes a copyright assignment. This agreement ensures that the contractor acknowledges the transfer of copyright ownership to the employer or commissioning party.
To summarise, for works created by contractors outside the identified categories, there are specific requirements that must be met for them to be considered "works made for hire." These requirements include a written agreement, the inclusion of copyright assignment language, and, in some cases, specific designation of the work as a "work made for hire" in the contract. Without these elements in place, the work would not typically qualify as a "work made for hire," and the contractor would retain the copyright ownership.
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Works created by an employee of a newspaper, magazine, or periodical
In the United States, a "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 to that work. However, under the work-for-hire doctrine, the employer or commissioning party is considered the author and copyright owner, not the individual who created the work.
Articles published in academic journals or work produced by freelancers for magazines are not generally considered works created as a work for hire. This is why publishers often require the copyright owner, the author, to sign a copyright transfer document, transferring specific copyrights to the publisher.
In the UK, the work-for-hire doctrine is based on the concept of the first owner of copyright. Under section 17 of the Copyright Act, 1957, the first owner of the copyright in a work is the author, except in the case of works made by an employee under a contract of service or apprenticeship, in which case the employer is the first owner of the copyright. Special rules apply for literary, dramatic, and artistic works created by an employee of a newspaper, magazine, or other periodical. If a photograph, painting, portrait, engraving, or film is made "for valuable consideration at the instance of" another person, that person is the first owner of the copyright unless agreed otherwise.
In the US, a work for hire receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This is different from the standard US copyright term of the life of the author plus 70 years. It is important to note that the laws and definitions of "work for hire" may vary slightly between countries, and it is always advisable to seek legal advice for specific situations.
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Frequently asked questions
A "work made for hire" is a doctrine created by U.S. Copyright Law. Typically, the person who creates a work is considered its "author" and the owner of the copyright. However, under the work made for hire doctrine, the employer or the company that has commissioned the work, not the author, is considered the owner of the copyright.
The employer or commissioning party owns the copyright to a "work made for hire". The actual creator of the work may or may not be publicly credited for it, and this credit does not affect its legal status.
For a work to be considered "work made for hire", it must be detailed in a written agreement between the parties. The creative author acknowledges that the copyright ownership of the work belongs to the employer or hiring party. The individual with exclusive rights to the work is not the author but the business owner who hired them.
Examples of "work made for hire" include instructional texts, contributions to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, a test, and answer material for a test.
