Attorney Steve® Copyright Law Essentials - The Work for Hire Agreement
How Work-for-Hire Agreements Work
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Often people begin working for a company and sign a number of contracts with out fully reading them. Among these contracts will often be a Work for Hire contact, which many people will over look at the time even if they know what it is. Then later on down the road they want to keep an article, art piece, or design they've created under their employers orders or while working at said job only for find out their employer owns all the rights to it. By the end of this post you will fully understand all the ins and outs of a Work for Hire agreement and how you fair in your situation.
What is Work for Hire?
According to Section 101 of the Copyright Act “work made for hire” can be broken down into two parts:
- a work prepared by an employee within the scope of his or her employment
- 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 have agreed to the terms via a written instrument, i.e. contract, that the items will be considered made for hire.
As with many law texts the wording is a little complex and the definitions of certain words must be defined.
- “Supplementary work” is defined as a work prepared for a 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.
Lets say you are working as an illustrator for a large publishing house, your roll would be to portray what the author wrote in their novel as a picture. This job would fall under the “pictorial illustrations” aspect of the definition.
- “Instructional text” is then defined as a literary, pictorial, or graphic work prepared for publication and intended to be used in systematic instructional activities.
An example of this would be if you worked for a college textbook company and your job was to take scientific data from one of your coworkers and put it into a graphical format. This would fall under the “graphic” aspect of the definition.
How long does Work for Hire last
Typically, 90 from the date of publication or 120 years from the date of creation, whichever comes first, is the term for copyright protection of a work made for hire. There are termination provisions provided within copyright law, but there are no rights when it comes to terminated employees in a work for hire agreement.
What defines employee in regards to Work for Hire?
By definition an “employee” is an employee under the general common law of agency. So let's say you're an independent contractor and you are “specifically ordered or commissioned” to create some kind of material part 2 of the Work for Hire definition above will apply to you. As an independent contractor your work can be considered a work for hire only if it falls into one of the nine categories of works listed in the definition and there is a written agreement, i.e. contract, between the two parties stating it is a work for hire. This contract is an integral part of determining whom the work belongs to legally. Remember to always get it in writing.
There are 3 factors created by the Supreme Court in Community for Creative Non-Violence
- Control by the Employer over the Work (definitions direct from United States Copyright Office)
- For example, the employer determines how the work is done, has the work done at the employer's location, and provides equipment or other means to create the work.
- Control by employer over employee
- For example, the employer controls the employee's schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee's assistants.
- Status and conduct of employer
- For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee's payment.
The issue here is that the Court left it unclear which of these factors must be present to establish an employment relationship to make work for hire applicable. On top of this, the Court has held that administration over created works is not enough to establish work for hire. This means that just because you had someone, a “boss” or “supervisor”, directing you or the creation of the work they do not necessarily hold the rights.
Notable Work For Hire Case Study:
Marvel Characters, Inc. v. Kirby, No. 11-3333 (2d Cir. 2013):
Jack Kirby, although unknown to the common man, was one of the most prominent comic book artists during the “Silver Age of Comics” working for Marvel. The defendants were Kirby's children on behalf of his estate, due to him being deceased since 1994. The case was focused on the rights of some 262 works published by Marvel from 1958 to 1963. These works include famous characters such as Spider-man, Iron Man, the X-Men, the Avengers, and many more. The defendants repeatedly served various Marvel entities with Termination Notices in effort to receive statutory termination rights according to section 304(c)(2) of the Copyright Act of 1976, 17 U.S.C. 304. Marvel then filed suit under 304(c)(2) stating that defendants have no rights under work for hire. In the end the district court determined that the works involved in this dispute were in fact made for hire, due to no contract stating otherwise along with the works being made at Marvels “instance and expense”. Because the works in question were made for hire the defendants did not receive the rights for any of Marvels works created by Kirby.
Blog written by Tomas Braly - Texas A&M Graduate.
Contact a Work-For-Hire Copyright Attorney
We can help with contract drafting, work for hire agreements, copyright assignment and other copyright related issues such as arbitration and mediation of licensing disputes. We also handle fair use opinions, copyright recapture, and federal copyright infringement.
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