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WORK FOR HIRE

The Copyright Act of 1976 provides that copyright ownership "vests initially in the author or authors of the work." 17 U. S. C. §201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. The Act carves out an important exception, however, for what are called "works made for hire." If the work is for hire, "the employer or other person for whom the work was prepared is considered the author" and owns the copyright, unless there is a written agreement to the contrary.

The work for hire doctrine can be found in the Copyright Act at 17 U.S.C. §201(b):

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

This section must be read in a larger context in order to be understood. As with all parts of the Copyright Act, it is necessary to return to Section 101 to see if there is a definition for the term "work made for hire." A work for hire is defined in 17 U.S.C. § 101 as:

(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.

The above definition shows that two types of works of authorship will be considered works for hire - those created by an employee acting within the scope of employment, and those that are specially commissioned and fit within the terms of subsection (2).

The first thing to recognize is that in order for a work to qualify as a work for hire under subsection (2) of the work for hire definition, it absolutely must be one of the enumerated works listed in that subsection. If it is not one of the listed works, there cannot be a work for hire unless the work was prepared by an employee as a part of his or her job duties, which is covered in subsection (1).

There are multiple factors used to determine whether the creator is an employee. Perhaps the more important considerations include whether workers compensation insurance is obtained to cover the creator, whether the creator must report and conform to the day-to-day requirements of a supervisor and whether there is a tax withholding relationship that suggests employment. Additionally, even if the creator is an employee it is necessary to also determine whether the work was created in the course of employment. If, for example, a math teacher were to create a copyrightable song, the teacher, not the school, would own the copyright. Just because a person is employed does not mean that everything they create would be owned by their employer. If, however, the same math teacher created a syllabus, the school would own the copyright to the syllabus because it was prepared by the teacher in the normal course of conducting the business of the employer. Likewise, most authorities would agree that the creation of a textbook would leave the copyright in the teacher, not in the school. This is true because, while teachers are normally required to adopt a text for use in the classroom, there is rarely, if ever, a requirement that an original text be created for classroom use. If, however, the school did require the creation of original materials or the development of a new course, the school and not the teacher would all but certainly own the copyrights to those works.