Copyright:
Work Made for Hire

What is a work made for hire?

Work made for hire is when an employer or commissioner automatically owns the copyright rather than the artist.

Copyright law gives copyright to the artist (the “author”), except for when the artist is an employee or has been specifically paid for the work. Under this exception, the employer/payer is automatically the “author” as the work is considered “work made for hire” and the actual artist gets no copyright, just the salary or commission payment.

“Although the general rule is that the person who creates the work is its author, there is an exception to that principle. The exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author.”
— U.S. Copyright Office, FAQ

“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.”
— 17 USC §201(b)

“In the case of .. a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.
— 17 USC §302

Who owns the copyright?

“Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person. The subject of the photograph generally has nothing to do with the ownership of the copyright in the photograph.”
— U.S. Copyright Office, FAQ

“The rule has long been established, both under the common law and under the statute, that the rights in a work produced by an employee in the course of his employment are vested in the employer.”
— 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

Commissioned Work

“The courts .. have not generally regarded commissioned works as made for hire.”
— 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

What if I got paid to take the photo?

“Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: the copyright law defines a category of works called ‘work made for hire.’ If a work is ‘made for hire,’ the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.”
— U.S. Copyright Office, Circular 9

What is “work made for hire”?

“In the case of work made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a ‘work made for hire’ 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
  • a 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
  • an atlas

— U.S. Copyright Office, Circular 1

In my full-time job, I took a photo. Do I own the copyright?

“If a work is ‘made for hire,’ the employer, and not the employee, is considered the author. .. a “work made for hire” [includes] a work prepared by an employee within the scope of his or her employment.”
— U.S. Copyright Office, Circular 9

I got paid to take a specific photo for a book. Do I own the copyright?

“.. a ‘work made for hire’ .. [includes] a work specially ordered or commissioned for use as a contribution to a collective work, .. as a supplementary work, as a compilation, .. 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 a publication as a secondary adjunct to a work by another author for the purpose of .. illustrating .., or assisting in the use of the other work, such as .. pictorial illustrations .. .”
— U.S. Copyright Office, Circular 9

I am an independent photographer. Does my client get copyright?
I hired a (portrait, wedding, studio) photographer to take some photos. Do I get the copyright?

“If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.”
— U.S. Copyright Office, Circular 9

What is the definition of “employee”?

“If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in [Community for Creative Non-Violence v. Reid, 490 U.S. 730, 1989] identified certain factors that characterize an ‘employer-employee’ relationship as defined by agency law:

1. Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
2. Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
3. Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)

— U.S. Copyright Office, Circular 9

“These factors are not exhaustive. The court left unclear which of these factors must be present to establish the employment relationship under the work for hire definition, but held that supervision or control over creation of the work alone is not controlling.”
— U.S. Copyright Office, Circular 9

“All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise).”
— U.S. Copyright Office, Circular 9

I work for a newspaper. Who owns the copyright?

“Examples of works for hire created in an employment relationship include .. A newspaper article written by a staff journalist for publication in the newspaper that employs him.”
— U.S. Copyright Office, Circular 9

I can’t determine if I am an “employee” or an “independent contractor.” What should I do?

“The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire. However, since there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable.”
— U.S. Copyright Office, Circular 9

If I take a photo for my employer, who is the “author”?

“If a work is a work made for hire, the employer or other person for whom the work was prepared is the author.”
— U.S. Copyright Office, Circular 9

An employee of mine took a photo. What do I write on the copyright registration?

“.. the employer .. should be named as the author on the application for copyright registration. The box marked ‘work-made-for-hire’ should be checked ‘yes.’”
— U.S. Copyright Office, Circular 9

Is there a way that an employee can be the copyright owner?

“If a work is a work made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless there has been a written agreement to the contrary signed by both parties.”
— U.S. Copyright Office, Circular 9

How long does copyright last for a work made for hire?

“The term of copyright protection of a work made for hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. (A work not made for hire is ordinarily protected by copyright for the life of the author plus 70 years.)”
— U.S. Copyright Office, Circular 9

“Even if a person hires a photographer to take pictures of a wedding, for example, the photographer will own the copyright in the photographs unless the copyright in the photographs is transferred, in writing and signed by the copyright owner, to another person.”
— U.S. Copyright Office

Morgan v White Rock Distilleries, 2002

Community for Creative Non-Violence v. Reid, 1989

Commissioned work is not work made for hire.

“Transforming a commissioned work into a work by an employee on the basis of the hiring party’s right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions.”
— Community for Creative Non-Violence v. Reid, 1989

“To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor.”
— Community for Creative Non-Violence v. Reid, 1989

“Apart from the deadline for completing the [artwork], [the artist] had absolute freedom to decide when and how long to work. [The hirer] paid a sum dependent on ‘completion of a specific job, a method by which independent contractors are often compensated.’ Holt v. Winpisinger, 1987. … [The hirer] did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.”
— Community for Creative Non-Violence v. Reid, 1989

Also see joint work.

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