“Work Made For Hire”, 17 USC §101: An original, copyright-able work (meaning: a work that falls within the subject matter of copyright protection) qualifies as a “work made for hire” if the work either (1) is created by an employee within the scope of his or her employment or (2) qualifies as “work made for hire” under the established evaluative criteria described below.
Significance of “Work Made for Hire”: The significance of a work being deemed “work made for hire” is that the beneficiary of that designation owns full copyright in the work outright and exclusively. Thus, as between an employee an employer, the employer owns the copyright to any works created by that employee within the scope of his or her employment. Likewise for a party contracting for the creation of a work from a non-employee.
“Work Made For Hire” and Non-Employees: For a work created by a non-employee to qualify as “work made for hire”, all three of the following criteria must be satisfied:
1. The work must be specially ordered or commissioned. In other words, the thing being contracted for must be something newly created for purposes of the particular transaction at issue, as opposed to sale or license of something already existing.
2. The work must be the subject of a written agreement or other written material, created and signed by both parties prior to beginning the work, stating their mutual intent that the work is to be considered “work made for hire”.
3. The work must fall into one or more of the nine categories enumerated in the Copyright Act, 17 USC §101. These categories are:
a. A translation;
b. A motion picture contribution or other audiovisual work;
c. A collective work contribution (example: a magazine article, or contribution to an anthology or encyclopedia:
d. An atlas;
e. A compilation;
f. An instructional text;
g. A test;
h. Answer material for a test; or
i. A supplemental work such as a preface to a book, a foreword, illustration, or musical arrangement.
Disputes as to “work made for hire” arise under several common areas, in particular these:
1. The distinction between an employee and a non-employee or independent contractor. This issue was addressed in 1989 by the US Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). A common scenario involves a party who commissioned a work in the absence of a written agreement as to “work made for hire”, arguing that the author or artist was in fact a statutory employee. An employee might also argue that, while conceding the employee-employer relationship, nonetheless the work was created outside of the scope of the employment relationship.
2. Nonqualification of the relevant work under one or more of the nine categories enumerated in the Copyright Act. Addressing this point, contracts often have an “belt and suspenders” kind of clause involving language providing that in the event a work is deemed not a “work made for hire” that, nonetheless, the author has agreed to an assignment of the full copyright to the commissioning party. This is common particularly with software development agreements, since software is clearly not an included category in Section 101 of the Copyright Act.
Copyright Act of 1976:
http://www.copyright.gov/title17/
Other resources:
http://www.developerdotstar.com/mag/articles/daniels_softwarecopyright.html
http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=July&artYear=2009&EntryNo=8329
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