Legal for Creators - Works for Hire by G.A.M. Law Office

Why is this important? COPYRIGHT. G.A.M. LAW OFFICE PC. +1 (646) 397-2396

What is Copyright? Copyright ownership vests initially in the author of the work. Although the author usually is the person who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection, copyright law carves out an important exception for a work made for hire. In such instances, copyright law deems the employer to be the author for purposes of copyright ownership. If the employer is able to prove that the work was created as a work for hire, the work's creator can overcome the employer's presumptive authorship only by evidence of an agreement to the contrary. Lewin v. Richard Avedon Found., 2015 U.S. Dist. LEXIS 83452 (S.D.N.Y. June 26, 2015)

Work for Hire… The General Rule is that the creator of a copyrighted work is the owner of the copyright in that work and would be identified as the author on an application for copyright registration.

… But, where the work is a "work made for hire," the owner/author is the employer or company that requested the work be created (unless the parties enter a signed, written agreement stating otherwise).

Consequences of the “work for hire” doctrine ❑ No rights in the work. Unless the employer or company grants the creator a license, the creator will not be able to exercise any of the exclusive rights associated with the copyright, such as reproducing or distributing the work.

❑ No termination rights. For works made for hire, the employer/company is deemed the "author" of the work from its inception, and the creator therefore cannot regain any rights in the work.

The concept of “employment” in Copyright When it comes to copyright and the concept of work for hire, understanding the concept of employment is fundamental. For this purpose, we consider some of the following questions: - The hiring party's right to control the manner and means by which the work is produced.

- The skill required. - The source of the materials used to create the work. - Where the work is created - The duration of the relationship between the parties

The concept of independent contractor If a work is created by an independent contractor, then no work for hire exists. This means that to acquire the copyright over a work it is necessary to enter into an assignment agreement. • There must be a written agreement between the parties that expressly states the work shall be considered a work made for hire.

• The work must fall into one of nine statutory categories.

• The work must be specially ordered or commissioned.

The work must fall into one of nine statutory categories. ▪ Works created by independent contractors that do not fall within one of the nine statutory categories will not be considered works made for hire, even if the parties have entered into an agreement expressing their intent that the work should be considered as such.

▪ In this situation, for the commissioning party to own the copyright in the work, the independent contractor must execute an assignment agreement. -

The work must fall into one of nine statutory categories. ❑ A part of a motion picture or other audiovisual work ❑ A translation

❑ Maps

❑ Charts ❑ Tables

❑ A supplementary work (i.e., a work prepared as "a secondary adjunct" to a work by another author "for the purpose of introducing, concluding, llustrating, explaining, revising, commenting upon, or assisting in the use of the other work"), such as:

❑ Editorial notes ❑ Musical arrangements ❑ Answer material for tests ❑ Bibliographies

❑ Forewords ❑ Afterwords ❑ Pictorial illustrations

The work must be specially ordered or commissioned. ▪ Unless there is a special kind of agreement in place, before any work begins, someone who contributes material to a work of authorship, may be considered a co-author.

The Written Agreement ▪ Note that courts have disagreed on the timing of the written agreement. Some require the writing to precede the creation of the work.

▪ Others give force to writings executed after creation of the work provided the writing confirms a prior agreement, either explicit or implicit, made before the work's creation.