No - It Probably Isn't a Work Made for Hire
April 11, 2011

By Joseph S. Heino

So you hired a third party to develop software for your company or to put together your website or even to write a company newsletter. You paid them for those services. You now assume that you own the copyright to the work because it was a "work made for hire."

Not so fast. While it is true that, in an employer-employee setting, the employer or other person for whom the work was prepared is typically considered the author and owns all of the rights in the copyright, most works created by third-party independent contractors don't qualify as a work made for hire under the Copyright Laws and are therefore owned by the independent contractor.

A work made for hire is not just any work that you pay someone to create for you. Nor is it any work that you and a developer agree is a work made for hire. A "work made for hire" is specifically defined in the Copyright Laws and applies only when certain conditions are all met. 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 (1) a contribution to a collective work, (2) as a part of a motion picture or other audiovisual work, (3) as a translation, (4) as a supplementary work, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) 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.

If the work is prepared by an employee, it is likely to be considered a work made for hire. If not, in order for a work to be considered a work made for hire: (1) it must come within one of the nine categories of works listed above; (2) the parties must agree that the work is a work made for hire; and (3) the agreement must be signed prior to the commencement of the work.

What's missing from the nine categories? Just about everything. For instance, computer software is considered a "literary work" and would therefore not be considered a work made for hire when created by a third-party independent contractor because it does not fit within one of the nine categories. However, not all is lost. While the work made for hire doctrine does not apply in most circumstances, we can assist you in drafting an assignment of the work at issue to the appropriate party.

Contact Joseph S. Heino (jheino@dkattorneys.com) at 414-225-1452 or your Davis & Kuelthau attorney with any questions or would like more information regarding works made for hire.

 

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