Work for hire

A work made for hire (sometimes abbreviated as work for hire or WFH) is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.[citation needed]

States that are party to the Berne Convention for the Protection of Literary and Artistic Works recognize separately copyrights and moral rights. Moral rights include the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work.

The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. For example, Microsoft hired many programmers to develop the Windows operating system, which is credited simply to Microsoft Corporation. By contrast, Adobe Systems lists many of the developers of Photoshop in its credits. In both cases, the software is the property of the employing company. In both cases, the actual creators have moral rights. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce comic books featuring characters such as Batman or Spider-Man, but the publishers hold copyrights to the work. However, articles published in academic journals, or work produced by freelancers for magazines, are not generally works created as a work for hire, which is why it is common for the publisher to require the copyright owner, the author, to sign a copyright transfer, a short legal document transferring specific author copyrights to the publisher. In this case the authors retain those copyrights in their work not granted to the publisher.

Contents

Law of the United States

The U.S. Constitution requires the initial owner of a copyright in a work be the author.[1] In most cases, the author is the individual or group of individuals that actually creates the work. However, when a work is created by an employee as part of his or her job, or when certain kinds of works are created on behalf of a client and all parties agree in writing to the designation, a work may be a "work for hire". The author of a work for hire is never the actual creator. Instead, the author is the person or entity that hired the actual creator.[2] The above U.S. Constitutional requirement is why the employer or paying client is considered the "author" in a work for hire, contrary to standard usage of the word "author", because a law directing copyright be awarded to an employer or client instead of the author would be unconstitutional.

The circumstances in which a work is considered a "work made for hire" is determined by the language of the United States Copyright Act of 1976:

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. (17 U.S.C. § 101)

The first situation applies only when the work's creator is an employee, not an independent contractor.[3] The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency,[3] in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employers from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid,[4] the Court listed some of these factors:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."

On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:

  • the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
  • the work must be specially ordered or commissioned;
  • there must be a written agreement between the parties specifying that the work is a work made for hire.[3]

In other words, mutual agreement that a work is a work for hire is not enough. For example, if Willy James commissioned Octavia Goodnotes to write a symphony in honor of WillyJamesCo's 10th Anniversary, and she agreed in writing that the work was a work for hire, and promised in writing to never consider the symphony anything but a work for hire — it would not be a work for hire because symphony was not created as part of a motion picture or other audiovisual work. In other words, the work does not come within one of the nine categories of WFH that are created by an independent contractor. In the absence of additional assignment or licensing agreements, James would have only an implied-in-conduct nonexclusive license and Goodnotes would remain free to sell or license her symphony to others, including James, if she so desired.[dubious ] As a general practice, such commissions specify an exclusivity period, confer publishing rights to the commissioning organization, or exempt the commissioning organization from performance and print royalties. For vocal works such as operas, a common practice is for the author of the text to be compensated as work-for-hire and the composer of the music to assume full rights under the copyright law.

An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright.[5] However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire."[3] These restrictions, in both the work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings. Nonetheless, failure to secure a work-for-hire agreement by commissioning organizations can create difficult situations. One such example is the artist Raymond Kaskey's 1985 statue, Portlandia, an iconic symbol of the city of Portland, OR. Unlike most works of public art, Kaskey has put strong prohibitions on use images of the statue, located atop the famous Portland Building. He sued Paramount pictures for including shots of the statue in the Madonna motion picture, Body of Evidence. As a result, it is nearly impossible to film portions of one of downtown Portland's most vibrant neighborhoods, and the city has lost out on the potential to create merchandise (keychains, etc.) from one of its most iconic landmarks.

When forced to rely on an implied license, a hiring party often finds that it has only limited rights to alter, update, or transform the work for which it paid. For example, a motion picture feature may hire dozens of creators of copyrightable works (e.g. music scores, scripts, sets, sound effects), any one of which could limit use of the entire film by denying permission to copy their contribution; the producers avoid this scenario by requiring that all contributions by non-employees fulfill the work-for-hire requirements.

An author can grant their copyright rights (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).[5]

The application of the law to materials such as lectures, textbooks, and academic articles produced by teachers is somewhat unclear. The near-universal practice in education has traditionally been to act on the assumption that they were not work for hire.[6]

Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding. [7]

Law of Ireland

Under Irish law, the first copyright holder of a work made by an employee in the course of an employment is the employer. To the contrary, copyright in works made for hire outside an employer/employee relationship remains with the author.[8]

Copyright duration

In the United States a "work for hire" (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term of life of the author plus 70 years because the "author" of a work for hire is often not an actual person, in which case the standard term would be unlimited, which is unconstitutional.[9] Works published prior to 1978 have no differentiation in copyright term between works made for hire and works with recognized individual creators.

In the European Union, even if a Member State provides for the possibility of a legal person to be the original rightholder (such as is possible in the UK),[10][11] then the duration of protection is in general the same as the copyright term for a personal copyright: i.e., for a literary or artistic work, 70 years from the death of the human author, or in the case of works of joint authorship, 70 years from the death of the last surviving author. If the natural author or authors are not identified, nor become known subsequently, then the copyright term is the same as that for an anonymous or pseudonymous work, i.e. 70 years from publication for a literary or artistic work; or, if the work has not been published in that time, 70 years from creation.[12] (Copyright durations for works created before 1993 may be subject to transitional arrangements).[13]

An exception is for scientific or critical editions of works in the public domain. Per article 70 of the German copyright law (and therefore applicable to the entire EU under the Berne Convention), editions as the result of scholarly or scientific analysis have a copyright length of 25 years. Therefore, the editor of an urtext score of an opera by Beethoven would only receive 25 years of protection, but the the arrangement of the full orchestral part for piano would receive a full 70 year protection - timed from the publication of the piano arrangement and not the death of the editor. Editing is a proper work-for-hire activity.

See also

References

  1. ^ U.S. Const. art. I, § 8, clause 8 ("The Congress shall have power . . . To . . . secur[e] . . . to Authors . . . the exclusive Right to their respective Writings . . . .")
  2. ^ 17 U.S.C. § 201(b); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)
  3. ^ a b c d US Copyright Office, Circular 9: Work-Made-For-Hire Under the 1976 Copyright Act.
  4. ^ Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)
  5. ^ a b http://www.copyright.gov/docs/203.html
  6. ^ http://www.bc.edu/bc_org/avp/law/lwsch/journals/bclawr/41_3/02_TXT.htm , retrieved April 28, 2009
  7. ^ http://apps.americanbar.org/buslaw/blt/content/2011/04/keepingcurrent-ip.shtml , retrieved April 15, 2011
  8. ^ http://www.irishstatutebook.ie/2000/en/act/pub/0028/sec0023.html
  9. ^ Peter B. Hirtle, Copyright Term and the Public Domain in the United States, 1 January 2007.
  10. ^ Section 11, UK Copyrights, Designs and Patents Act 1988 as amended to 2005. As posted by R. G. C. Jenkins & Co., patent law office. Accessed October 25, 2007.[dead link]
  11. ^ W. R. Cornish and David Llewelyn, Intellectual Property: Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 5th ed. (London : Sweet & Maxwell, 2003) 471-72. ISBN 0421781203. ISBN 9780421781108.
  12. ^ Article 1, Directive harmonizing the term of copyright protection, Directive 93/98/EC.
  13. ^ In the UK see for example Copyright law of the United Kingdom, and links from that page.

Further reading

External links

Copyright codes of various countries pertaining to WFH:

Sweden
United States
World

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