Work for Hire

Section 101 provides a definition for work for hire: “(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 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…”

If a work is considered a work for hire, the hirer or employer holds the copyright of the work.  Much litigation has ensued about this between parties that have worked together to make some final work, and between employers and employees.  The Supreme Court in Community for Creative Non-Violence v. Reid established a set of factors from the Restatement of Agency to aid courts in determining if one of the parties was an employee of the plaintiff.  These factors include: (a) right of hiring party to control manner and means of production, (b) the skill required to complete the work, (c) source of instrumentalities and tools for the work, (d) location of the work, (e) duration of the relationship of the parties, (f) whether hiring party has right to assign other projects to hiree, (g) discretion of the hiree over when and how long to work, (h) method of payment for the work, (i) hiree’s role in hiring and paying others to assist with the work, (j) whether the work is regular work of hiree, (k) employee benefits, and (l) tax treatment of the hiree.  In Aymes v. Bonnelli, the court held that not all these factors are equally important, and whether or not the employer pays social security taxes and other benefits for the alleged employee will always be relevant to a finding of the status of the hiree.

If the hiree is found to be an employee, the next question is whether the employee was acting within the scope of his employment.  Avtec v. Pfieffer held that the factors in section 228 of the Restatement of Agency would be used to determine if the work was completed with the scope of the employee’s employment.  These factors are (a) if the work is of the kind the employee is employed to perform, (b) the work occurs substantially within the authorized time and space limits of the employment, and (c) the work is actuated by a purpose to serve the master.

If the employee is not acting within the scope of his employment, plaintiffs will then look to determine if part two of the work for hire definition is relevant.  Generally, courts require there to be a written agreement between the parties indicating that the party commissioning the work will own the copyrights to the work, and the work itself must fit within one of the categories in the statutory definition.

If neither of the two clauses of the work for hire definition fit the fact pattern, the independent contractor will hold the rights to the copyright.

Published by


Maryland technology attorney and college professor.

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