What is a WFH?
A work made for hire, also known as a work for hire, is an exception to Copyright law whereby the person who creates a work is not legally-recognized author of that work.
As you may know, when a work is first written down or otherwise set into tangible form, the Copyright immediately becomes the property of the author who created it (Click here for Copyright FAQ).
The general rule is that the person who creates a work is the author of that work. However, there is an exception to that principle. Under the Copyright Act a work made for hire, gives ownership of the work at the time of creation to an employer. Thus, the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.
If I create something at my job my employer owns the Copyright?
That is correct. When a work is created by an employee as part of his or her job the work will be considered a "work for hire".
The key is that the work must be made within the scope of your employment. Thus, if you work for software company designing computer games the Copyright in your games will belong to your employer. However, if you design a pattern and make a scarf during your lunch break, the Copyright in the pattern is yours.
What if I am an independent contractor?
If you’re an independent contractor your work may still be considered a work for hire, and the person hiring you will be considered the author of the work, if the work is specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. This is set forth in the Copyright Act (17 U.S.C. § 101)
Unlike an employer-employee created work for hire, when it comes to a contractor situation a work for hire is only created when the work fits into one of the 9 categories set-forth above. For instance, a contactor made backing for a quilt would not qualify as work made for hire, and the person creating the backing would have a potential Copyright claim.
What if I want to hire someone to do something that doesn’t fit into one of the 9 categories (e.g. sew a quilt), what can I do?
If you want to hire a contactor to create something, but aren’t sure of the work will qualify as a work for hire (or flat-out know the work won’t qualify), then you need to include an assignment clause in your agreement with the contractor. If you are hiring a contractor you can simply draft a work for hire agreement, and include language that makes it clear that if a court finds that the work is not a valid work made for hire, then the work is assigned to you.
Here’s an example:
“To the extent that the Work is determined by a court of competent jurisdiction or the Register of Copyrights not to be a work made for hire, Artist agrees to execute any and all documents deemed necessary and appropriate by Company to effectuate a complete transfer of ownership of all rights, including but not limited to copyright rights, to Company throughout the world.”
Someone bought a painting I made last year, but the agreement had WFH language...what does that mean?
It means nothing! A work made for hire is a work that is “specially commissioned”, meaning it cannot be a work that was previously created. The Copyright in your painting is simply subject to a sales agreement (i.e. not Copyright rights), a license or an assignment (as discussed above, the contactor may have work for hire and assignment language, as a fallback, in the agreement).
I was contacted to write a story that was published on a company’s website. We agreed the company would own the story, but the agreement was oral, not written. Is it a work made for hire?
No! Unless you were an employee of the company, a work for hire agreement must be in writing. Without a written agreement your Copyright is simply an implied or non-exclusive license. For more on Copyright and implied/oral agreements see, Agreeing to License: How Do I Get Out Of This Mess? – License Duration and Termination.
What about my Moral Rights?
Moral rights include the right of the actual creators to publicly identify themselves as creators, and to maintain the integrity of their work. Thus, if you create the software for a video game as an employee, your employer owns the Copyright, but it is subject to your Moral Rights.
That having been said, the U.S. does not recognize Moral Rights under Copyright Law, except in some limited circumstances for works created after 1990.
However, if you were in Europe, where many countries do recognize Moral Rights (as subscribers to the Berne Convention), you might be able to demand that your credit be included in the game and you might also be able to stop your employer from modifying the game.
It’s also worth noting that is you are hiring someone to create works, you should always include a Moral Rights waiver clause in your agreement. Despite the U.S. position on the subject, the work may be distributed or exploited in a place that does recognize Moral Rights or if it's not considered a work made for hire might have limtied moral rights under VARA.
If my work was subject to a work made for hire, can I get my Copyright back?
Sure. You can always enter into a licensing agreement or obtain an assignment from your employer or from the person who hired you as a contractor.
You may have heard of something called the Right of Reversion. Under the Copyright Act an author has the right to re-claim a Copyright that was assigned or exclusively licensed. During the 35th year after the rights were granted the copyright author (or his/her heirs) can reclaim the Copyright by terminating the license or assignment. This Right of Reversion is only available to the author. Under a work for hire, the employer is the author, so the Right of Reversion is not applicable to works made for hire.
How long does the Copyright in a work made for hire last?
A standard copyright lasts for the life of the author plus 70 years, if created during or after 1978. A "work for hire" (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. If you want info on pre-1978 copyright rights, you can check the U.S. Copyright Office website or send ARC Law Group an email.
If you have any other questions or concerns about work for hire related issues, feel free to send ARC Law Group a message at firstname.lastname@example.org.
You understand and agree that use of this blog does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided on this blog is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.