Work for hire

From Freepedia

A "work for hire" (sometimes expressed as "work made for hire") 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 most countries, if a work is "made for hire", the employer - not the employee - is considered the legal author. The employer may be a corporation or an individual.

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 the credits for it. In both cases, the software is the property of the employing company. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce comics featuring characters such as Batman or Spider-Man, but the publishers claim legal authorship of the work.

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

Law of the United States

Under U.S. law, the owner of a copyright in a work is the author. In most cases, this is the individual or group of individuals that creates the work. However, when a work is considered a work made for hire, the author of the work is no longer the individual creator or creators. Instead, the author is considered to be the entity that hired the creator of the work.

When a work is considered a work made for hire is determined by the language of the United States Copyright Act:

Works Made 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 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. sec 101

The first situation applies only when the work's creator is an employee and not an independent contractor. 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". Although the distinction between an employee and an independent contractor can be difficult to analyze in some situations, it is clear that a work created within the scope of a regular, salaried or hourly employee's job is a work made for hire. Typical examples of works made for hire are a software program created by an employee programmer, or the ad copy created by a marketing department employee.

If a work is created by an independent or "freelance" contractor (that is, someone who is not an employee), the work may still be a work for hire, but the definition is much harder to meet. In order for the work of an independent contractor to be a work made for hire: i) the work must be specially ordered or commissioned; ii) the work must come within one of the nine categories of works listed in the definition above; and iii) there must be a written agreement between the parties specifying that the work is a work made for hire.

The determination of whether a particular work is a work made for hire can be crucial to the hiring party's ability to utilize the created work. If a work is considered a work made for hire, the author and owner of the work is the hiring party. If the work is not a work made for hire, the hiring party has no copyright ownership in the work. The hiring party's ability to use the work would therefore depend either on the specific terms of its agreement with the author, or upon the concept of an implied license to use the work. If forced to rely on an implied license, the hiring party may find that it has only limited rights to alter, update, or transform the work for which it paid.

Even when a work is not a work made for hire, the parties can agree to assign copyright rights from the author to the party paying for the creation of the work. Under certain circumstances, the creator may retain some rights to the material following this assignment, such as a provision in the 1976 legislation which extended copyright terms, which allows creators of pre-existing works to reclaim the copyright when the previous shorter term would have expired.