In the late 1970s, a US federal statute formalized the concept that a work is innately copyright protected at the time of creation. As written, “A work is created when it is ‘fixed’ in a copy or phonorecord for the first time.”

While every creator naturally has copyright to any original form of expression, the United States Copyright Act of 1976 also outlines exceptions to those protections. One of those exceptions is the “work for hire” doctrine which comes into play with employers and their employees or independent contractors. 

The “Work for Hire Doctrine,” An Exception to Automatic Protection

The “work for hire” doctrine refers to a subsection in 17 U.S.C. § 101 which outlines what a “work made for hire” (or WFH) is, how it may be protected by copyright law, and to whom a copyright of a work may belong.

Generally speaking, when an employee or independent contractor has created a work as part of his or her job or when it is a commissioned work associated with a particular project, the employer is considered the “author” of the work, not the employee or independent contractor. Thus, the employer is legally recognized as the owner of the copyright. 

This arrangement is often referred to as “corporate authorship.” Among traditional employees the matter is typically managed through a new-hire agreement signed within the first week of employment. 

Employers who use independent contractors for projects (i.e., graphic artists, writers, photographers) will find the copyright arrangements can be a bit more complicated. 

Signed Work for Hire Agreements Are Required in Advance with Contractors

Employers who mostly work with freelancers do not typically require the same kind of new-hire agreement as a traditional employer. Instead, those commissioning work from independent contractors must utilize a work for hire agreement in order to properly secure copyright ownership of the final product.

Explicitly, the law outlines that this written agreement between parties must include one of two phrases somewhere within: “work for hire” or “work made for hire.”

Further, the terms of the work agreement on the specific commission should be negotiated and signed prior to the contractor beginning the commission. This will help avoid any issues or questions on who owns the copyright to the work. Retroactive work for hire is never an option.

Late Film Critic’s Estate Sues for Copyright Infringement – And Wins

Legendary film and theater critic Stanley Kauffmann died in 2013 of natural causes. Two years later, the Rochester Institute of Technology (RIT) — parent company to The New Republic, one of the publications Kauffmann contributed to — published the first posthumous collection of his film criticisms. 

The Kauffmann estate promptly filed suit for copyright infringement for the re-publication of Kauffmann’s reviews. 

In its defense, RIT provided the court a copy of the letter which served as the work-for-hire agreement between the Kauffman and RIT. The letter, dated 2004, acknowledged that “all articles [Kauffmann has] written for The New Republic have been ‘works made for hire,’ as that term is defined under the US Copyright laws.” The letter was signed by Kauffman and dated.

Unfortunately for RIT, an entity that did in fact take measures to respect the rights of its regular contributor, was unable to maintain ownership of the copyrights to all forty-four Kauffmann reviews that predated the letter. The court judged in favor of the plaintiff’s copyright infringement claim. 

The lesson is clear: when you deal with works for hire, execute your written work-for-hire agreement with the independent contractor in advance of the work’s creation. Make sure both parties understand who is going to own the copyright to the work in advance.

While the work for hire doctrine primarily exists as a way to recognize that commissioned employees tend to have unequal bargaining power in business dealings, as an employer, your failure to secure a work-for-hire agreement creates difficulties in determining who owns the copyright on the drafts and final work product.

Some independent contractors actually state in their contract that they will own the copyright to any artwork or photographs produced for the employer. If the independent contractor owns the copyright to the work, the employer will be restricted in their ability to use the artwork or photographs in the future. 

If you are a business owner who frequently hires freelancers and other outside vendors for the creation of copyrighted materials and need guidance regarding work for hire agreements or help crafting a standard agreement for your team, reach out to [email protected] or by calling 904-398-0900 for more information.