Work for hire

In the copyright law of the United States, a work made for hire (work for hire or WFH) is a work subject to copyright that is created by an employee as part of his or her job, or some limited types of works for which all parties agree in writing to the WFH designation. Work for hire is a statutorily defined term (17 U.S.C. § 101), so a work for hire is not created merely because parties to an agreement state that the work is a work for hire. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is 'made for hire', the employer—not the employee—is considered the legal author. 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.(1) a work prepared by an employee within the scope of his or her employment; or (2) a work 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. (17 U.S.C. § 101)In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee).' In the copyright law of the United States, a work made for hire (work for hire or WFH) is a work subject to copyright that is created by an employee as part of his or her job, or some limited types of works for which all parties agree in writing to the WFH designation. Work for hire is a statutorily defined term (17 U.S.C. § 101), so a work for hire is not created merely because parties to an agreement state that the work is a work for hire. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is 'made for hire', the employer—not the employee—is considered the legal author. 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. Accreditation has no impact on work for hire in the US. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. States that are party to the Berne Convention for the Protection of Literary and Artistic Works recognize separately copyrights and moral rights, with moral rights including the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work. For example, Microsoft hired many programmers to develop the Windows operating system, which is credited simply to Microsoft Corporation. By contrast, Adobe Systems lists many of the developers of Photoshop in its credits. In both cases, the software is the property of the employing company. In both cases, the actual creators have moral rights. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce comic books featuring characters such as Batman or Spider-Man, but the publishers hold copyrights to the work. However, articles published in academic journals, or work produced by freelancers for magazines, are not generally works created as a work for hire, which is why it is common for the publisher to require the copyright owner, the author, to sign a copyright transfer, a short legal document transferring specific author copyrights to the publisher. In this case the authors retain those copyrights in their work not granted to the publisher. The circumstances in which a work is considered a 'work made for hire' is determined by the United States Copyright Act of 1976 as either The first situation applies only when the work's creator is an employee, not an independent contractor. 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. In the Supreme Court case affirming that the common law of agency should be used to distinguish employees from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid, the Court listed some of these factors: On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met: In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though not signed, before the work begins. Retroactive work for hire is not permitted. When relying on agreements in which creators transfer rights to a hiring party (Copyright transfer agreement), a hiring party often finds that it has only limited scope to alter, update, or transform the work. For example, a motion picture may hire dozens of creators of copyrightable works (e.g., music scores, scripts, sets, sound effects, costumes) any one of which would require repeated agreements with the creators if conditions for showing the film or creating derivatives of it changed. Failing to reach agreement with any one creator could prevent the showing of the film entirely. To avoid this scenario, producers of motion pictures and similar works require that all contributions by non-employees be works made for hire. On the other hand, a work for hire agreement is less desirable for creators than a Copyright transfer agreement. Under work for hire, the commissioning party owns all rights from the very start even if the contract is breached, whereas under a transfer of rights, the creator can hold back the rights until all terms of the contract are fulfilled. Holding back the rights can be a forceful tool when it is necessary to compel a commissioning party to fulfill its obligations.