Work for Hire

Understanding the requirements for "work for hire" is vital
for employers, employees and freelance creators.

Employers may not claim the rights to creative work by simply labelling it "work made for hire".

We'll take a look at how the law defines ownership to the rights in creative work and the agreements that must be in place to claim or enforce those rights.

The important thing to note is that an enforceable written agreement should (read must!) be in place and it should be executed before work commences.

Such an agreement could then affirm or, if contrary to, supersede the rights ascribed in law.

To this end we supply two free agreements for you to use as templates:

• Work for Hire Contract for Independent Contractors / Freelancers
• Invention and Copyright Assignment for Employees

We'll give a quick overview here of how various countries determine who owns the rights in creative work in an employment vs a freelance situation.

NOTE: Be sure to review the guidelines below before using any of the free legal forms referenced above and refer to our page on Copyright Law for more information.

United States of America

The law defining Work for Hire is probably the best defined in the USA and reads as follows (we've added emphasis and notes):

Part A: a work prepared by an employee within the scope of his or her employment.

Part B: a work specially ordered or commissioned for use as:

1 - a contribution to a collective work (e.g.. magazine, encyclopaedia ),
2 - a part of a motion picture or other audio-visual work,
3 - a translation,
4 - a supplementary work (e.g. illustrations for an article),
5 - a compilation,
6 - an instructional text,
7 - a test,
8 - answer material for a test,
9 - 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.

Part A: seems easy to understand. It specifically addresses employees in an employment situation and employers may therefore think they automatically own the rights and do not need a written agreement in place.

Unfortunately there is still a possibility of dispute, so employers should at the minimum have a clause in the employment contracts addressing this issue - or use our template referenced earlier to get a written agreement in place.

A written agreement becomes even more important when an employee creates work outside the scope of his/her duties e.g. a secretary designs a Trademark for the company and does it in her own time.

Part B: has a couple of provisions that must be met:

• The authors of the work may typically be independent contractors (and there are requirements in law to determine the status of an independent contractor vs an employee) but the work must be specially ordered or commissioned on behalf of the client;
• The work must come within at least one of the 9 categories listed;
• There must be a written agreement where the parties specifically agree that the work is done as work-for-hire.

Note: You can also have a written and signed agreement to the contrary e.g. where the employer would normally have the rights in work for hire, the parties could agree (in writing) that the employee shall be the owner of the copyright.

It is of interest to note that copyright normally expires about 70 years (varies across the world) after the death of the author.

However, in the case of work made for hire, that period is extended to 95 years from the date of publication or 120 years from the date of creation, whichever comes first. The reason for this being that a company or other legal entity may own the rights and such a company or entity could theoretically last or survive indefinitely.

The law does not recognise an indefinite period in copyright though, hence the time limit of 95/120 years which is quite generous for all intents and purposes.

United Kingdom - Work for Hire

The UK broadly follows the same principles as described above for the USA, but doesn't specifically list limiting categories. The distinction is made between:

• Work made by an employee in the course of employment. The employer is the first owner of copyright in the work unless an agreement to the contrary is executed.
• Commissioned work - where the person or organisation who created the work is the first legal owner unless an agreement to the contrary is in place.

It is important to note that if you do not have an agreement for commissioned work in place, granting you as client ownership in the work, you may need to petition the court for the "right to copy" and at best may only be granted a limited non-exclusive licence to do so.

I guess you can see why we place so much emphasis on having signed agreements in place!

Canada - Ownership of Copyright

In Canada the creator of the work owns the copyright - but there are some exceptions. Although Canada does not use the concept of "work for hire" in law, for the purpose of discussion here, the law provides that the employer owns the copyright in work created by an employee if:

• The employee is duly employed under a contract of service or apprenticeship; (Note that this applies to a bona fide employee and not an independent contractor who provides a service)
• The work is done in the course and scope of employment;
• There is no agreement to the contrary.

Even though this employer ownership is recognised in law, it is yet again recommended to include a provision to this effect in your employment contract.

Course or Scope of Employment - What Does it Mean?

Consider the following to determine if the above is applicable:

• Was the work done during employment hours or was it done during the employee's free time;
• Did the employee initiate the work or did it follow from instructions given by the employer;
• Does the work form part of the employee's job description;
• Were the employer's resources used in the execution or creation of the work;
• Did the employee use confidential information gained during employment with the employer in the preparation of the work.

Not one single factor as outlined above will necessarily be a determining factor, but they will all be considered should a dispute arise.

Important: It must specifically be noted that the author of commissioned work owns the copyright. There used to be an exception with regard to photographic work, but the Act was amended towards the end of 2012 to grant photographers the same rights as other creators.

Therefore, a hiring party can only own the copyright in a commissioned work through a written (and signed by the author) assignment of copyright.

Australia

Australia broadly follows the USA in that the employer owns copyright for works made within the scope of employment and that an assignment of copyright is required to obtain ownership in commissioned work.

There are notable exceptions though, such as with certain photographic work, cinematographic works and audio and video works.

As noted before, notwithstanding the law: Employers, employees, commissioning parties and independent contractors are all free to change ownership in any copyright by written mutual agreement.

South Africa and Work for Hire

In South Africa the law provides for employers to own copyright in work made by an employee under a contract of service or apprenticeship. The law then specifically singles out literary or artistic work done by an employee for purpose of publication in a newspaper, magazine or periodical but limits the copyright of the employer to publication of the work in similar media.

If work is made under specific commission and being paid for (in money or money's worth) then the person who commissioned the work shall be the owner of the copyright. However, the Act only mentions the taking of a photograph, painting or drawing of a portrait, making of a gravure, cinematograph film and sound recording.

In all other respects the author or creator of the work shall be the owner of the copyright.

In all instances as described above, the parties can have an agreement to the contrary.

Moral Rights

Although the issue of copyright ownership may be resolved in a written agreement, we also need to take a look at the Moral Rights of the author or creator, which exists independently of copyright.

Consultation with a copyright lawyer in your jurisdiction can eliminate many disputes regarding the ownership of copyright.

If there is any unclarity whether a work for hire doctrine is applicable, then consulting with a copyright attorney is highly advisable before submitting application for copyright registration.

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