The Work Made For Hire Doctrine and Freelancers – Who Owns the Copyright?

Generally copyrights are only issued to the author of the original work. The Work Made for Hire doctrine is an exception to this rule where an employer is the owner of the work and the copyright, but this is contingent on whether the creator is an independent contractor or employee.

When an employer hires an independent contractor to produce an artistic work, the copyright remains with the independent contractor unless he or she agrees to license or transfer those rights. The Work Made for Hire exception as applied to independent contractors, on the other hand, specifically requires (1) for both parties to sign a written agreement; (2) the agreement must specifically state that the work is a Work Made for Hire; and (3) the artistic work must fall under one or more 9 specific types of work.

These types are:

• Contribution to a collective work,

• Part of a motion picture or other audiovisual work,

• A translation,

• A supplementary work,

• A compilation,

• An instructional text,

• A test,

• Answer material for a test, or

• An atlas.

Thus if an employer, instead of the independent contractor, provides an agreement that includes appropriate Work Made for Hire language, then it is imperative that the work itself still fits into one of the nine enumerated categories.

The Work Made for Hire exception as applied to employees requires that the work is created within the scope of their employment; either  created on the job or at the direction of their employer. While this seems to be more straightforward, there are of course gray areas – specifically, what is an employee? The Supreme Court has ruled that employment status is determined by weighing a number of factors examining how much control the employer has over a person’s work. In the case of freelancers, especially those with long-term contracts, it is best to clarify these things at the outset to avoid hiccups down the line.

For more information on how Castaybert PLLC can help you in securing, defending, or enforcing Works Made Hire Agreements with freelancers, please click here.