Work for hire
In copyright law, a work made for hire is a work whose copyright is initially owned by an entity other than the actual creator as a result of an employment relationship or, in some cases, a commission. It is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work.
In the United States, United Kingdom, and several other jurisdictions, if a work is created by an employee as part of their job duties, the employer is considered the legal author or first owner of copyright. In some countries, this is known as corporate authorship. The entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
The work for hire doctrine originated in United States copyright law, but other countries have adopted similar legal principles. In the jurisprudence of the United Kingdom and India, the hiring party is referred to as the first owner of copyright.
In the United States
Definition
Since the passage of the Copyright Act of 1976, a "work made for hire" has been defined in the copyright statute as either:The United States Copyright Office refers to the person or entity for whom the work is created as the hiring party. On copyright registrations, the hiring party may be referred to as an "employer for hire."
History
Early doctrine and the Copyright Act of 1909
The work for hire doctrine was first recognized by the Supreme Court of the United States in Bleistein v. Donaldson Lithographing Co., a case regarding the copyrightability of advertisements created by employees of a lithography company. The Court upheld the employer's ownership of the works, implicitly recognizing that works created by employees in the course of their duties could be owned by the employer.The doctrine was later codified in the Copyright Act of 1909: "...the word 'author' shall include an employer in the case of works made for hire." Although the 1909 Act did not explicitly define the term "work made for hire", courts began to apply what became known as the "instance and expense" test. According to this standard, if a work was created at the request and cost of the hiring party, that party was presumed to own the copyright. In addition, the Act did not expressly address commissioned works, which left a broad scope for interpretation. Courts extended the doctrine to cover not only employees but also independent contractors.
The "teacher exception", an exception to the work-for-hire doctrine for faculty members at colleges and universities, was articulated in a series of court cases under the 1909 Act. For example, in Williams v. Weisser, UCLA anthropology professor B.J. Williams successfully asserted common-law copyright in the content of his lectures against a company that was selling lecture notes to his students. In justifying Williams's copyright ownership of the lecture contents, the court explained: "No reason has been suggested why a university would want to retain ownership in a professor's expression. Such retention would be useless except possibly... for making it difficult for the teacher to give the same lectures, should he change jobs." It also cited precedent from the English court system, including the cases Abernethy v. Hutchinson and Caird v. Sime, establishing that professors and lecturers held common-law copyright to their lecture materials.
Under the 1909 Act, copyrights lasted for an initial term of 28 years, but could be renewed for another 28 years. For most works, even if an author had assigned all of their rights to another entity, such as a publisher or record company, during the first term, the copyright would automatically revert to the author at the beginning of the renewal term. In the case of works made for hire, there was no automatic reversion, and the renewal copyright vested in the current owner of the copyright, whether the original hiring party or someone who had obtained the copyright from them.
1960s–70s copyright law revision
The work-for-hire doctrine was revamped during the copyright law revision efforts of the 1960s, which culminated in the Copyright Act of 1976. After extensive negotiations supervised by Congress and the Copyright Office, representatives of authors, composers, book and music publishers, and motion picture studios settled on the two-pronged approach now enshrined in the 1976 Act, which encompasses both works made by employees and certain types of specially ordered and commissioned works:- contributions to collective works, such as periodicals, anthologies, and encyclopedias;
- parts of motion pictures and other audiovisual works;
- translations;
- supplementary works, such as forewords, afterwords, and illustrations for books;
- compilations;
- "instructional texts", including any "literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities";
- tests and associated answer material; and
- atlases.
During these negotiations, each of the nine categories was proposed by a particular copyright-based industry. Works in these categories tended to be done by freelance authors at the instance, direction, and risk of a publisher or producer, and it was argued that it would be unfair to allow such authors to terminate assignments of rights. Additionally, motion pictures and collective works were customarily created by large groups of people, and companies argued that allowing rights in these works to revert to individual contributors would risk fragmenting ownership and jeopardizing the companies' long-term ability to commercialize the works.
Sound recording debate
Although copyright protection for sound recordings was being contemplated contemporaneously with the mid-1960's debate over works made for hire, they were never proposed or considered for inclusion as a category in the specially ordered or commissioned work made for hire provision. Former Register of Copyrights Marybeth Peters speculated that "record companies did not seek to include sound recordings" among these categories because they were typically produced in recording studios where record companies exercised considerable control over the production process. This allowed record companies to assert that featured artists were "employees" creating the sound recordings in the course of an employment relationship, satisfying the first prong of the 1976 work-for-hire definition.In November 1999, a work for hire–related amendment was inserted into the Satellite Home Viewer Improvement Act of 1999, adding sound recordings to the list of categories that could qualify as specially commissioned works made for hire. This resulted in backlash from recording artists, who voiced concern that the amendment would strip them of their [|termination rights] in sound recordings transferred to record labels. Record companies argued that it was a technical amendment that merely clarified how existing law applied to industry practice, since the majority of sound recordings would have already qualified as contributions to collective works. However, in a 2000 testimony before the House Judiciary Committee, Peters predicted that the amendment might "prove to be anything but technical" if the music industry shifted to newer distribution models in which individual tracks could be unbundled from albums and downloaded separately.
In August 2000, the Recording Industry Association of America, representing record labels, and the Recording Artists' Coalition and other groups representing recording artists jointly agreed to recommend the repeal and retroactive cancellation of the work-for-hire amendment. Congress passed the Work Made for Hire and Copyright Corrections Act of 2000, which repealed the prior amendment and directed the courts and the Copyright Office to interpret the law as if neither the amendment nor its repeal had ever happened.
Works created by employees
If a work is created by an employee, the first prong of the work-for-hire definition applies. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence v. Reid identified certain factors that characterize an employer–employee relationship as defined by agency law:- Control by the employer over the work
- Control by employer over the employee
- Status and conduct of employer
Teacher exception
A number of court cases under the 1909 Copyright Act established the "teacher exception", providing that works created by university faculty were not considered works made for hire, even though they were created within the scope of their employment. Whether the [|teacher exception] has been preserved under the 1976 Act has been highly debated, however. According to Dave Hansen, "Despite the massive number of copyrighted works authored by university faculty after the 1976 Act, we have seen very few cases addressing this particular issue."
Professor Elizabeth Townsend-Gard argues that the teacher exception has been "subsumed by a work-for-hire doctrine that the Supreme Court's definition of employment in CCNV v. Reid places teachers' materials under the scope of employment." However, many universities continue to treat works created by faculty as the intellectual property of their individual creators as a matter of academic tradition. Some universities, such as Yale, acknowledge that federal law makes these scholarly writings works for hire by default, but disclaim ownership of them with some exceptions.