Understanding when you are producing work under a work for hire agreement or when you should be requiring someone to sign a work for hire agreement is essential to knowing what if any interests you have in the copyrights of work you create.
For employees, generally, what you create is owned by your employer, not you. This is what is termed as “works made for hire”. Knowing some basics about work for hire agreements can also assist you in negotiating your employment conditions. It is possible that even if you create something in and during the course of your employment that you may be able to retain some rights to those works.
Works that you create outside of your employment remain yours, not the employers. For example: if you work in the capacity of a writer, but after work and on the weekends are a painter you employer will not be able to claim any ownership in the copyrights of those paintings.
For people working freelance, including, but not limited to: artists, painters, writers, it is important to note that some of your work may fall under work for hire agreements. You may be commissioned for work or you may be the party requesting someone else sign a work for hire.
A “work made for hire” is—
(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. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment—
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,by the courts or the Copyright Office.
Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations. See http://www.copyright.gov/title17/92chap1.html#1-26 ,the Satellite Home Viewer Improvement Act of 1999 amended the definition of “a work made for hire” by inserting “as a sound recording” after “audiovisual work.” Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Work Made for Hire and Copyright Corrections Act of 2000 amended the definition of “work made for hire” by deleting “as a sound recording” after “audiovisual work.” Pub. L. No. 106-379, 114 Stat. 1444. The Act also added a second paragraph to part (2) of that definition. Id. These changes are effective retroactively, as of November 29, 1999.
In order for the work commissioned to be considered work for hire it must fall within the statutory categories. Even if your work does fall within one of those categories, it is not automatically a work for hire creation unless there is a written contract that expressly states the commission is for the purpose of work for hire, and both the person ordering the work and creating the work sign the agreement.
Without a signed agreement, you the creator, or the person you are commissioning to do the work start out all the original copyright rights. If you are considering commissioning work from someone you should enter into and have them sign it before they create the work.
© Hilary Metz, Esq. 2015
Twitter: @HilaryMetzEsq & @MillsMetzLaw
Hilary Metz is an attorney licensed in Florida and New York. Hilary Metz founded Mills Metz Law in order to pursue professional goals of her choice and to have the ability to choose the clients she works with and the focus on the areas of law she loves. As a songwriter and entrepreneur Ms. Metz understands first-hand the stresses and the fulfillment of being in charge of one’s own destiny and the creative process that goes into building any business. By providing advice to businesses on contracts, social media, copyright, trademarks, trade secrets, media & entertainment, and issues associated with creating and commercializing innovations, and creative content, and drafting and negotiating contracts and licenses, Ms. Metz is always hands-on with her clients. Hilary Metz is a member of the FL Bar, the NY Bar, and the ABA. Hilary Metz is a partner in several entertainment company’s, including Mics On Live, a radio show focused on unsigned artists in South Florida and Exec’s and Talent, an entertainment company focused on networking and educational events for the entertainment community. To learn more about Ms. Metz please visit her website at www.MillsMetzLaw.com