Legal Definitions - work made for hire

In copyright law, a work made for hire refers to a creative work where the person or entity that commissioned or employed the creator is considered the legal author and owner of the copyright, rather than the individual who actually created the work. This means the employer or commissioning party holds all exclusive rights, such as the right to reproduce, distribute, or adapt the work, from the moment of its creation.

There are two primary situations where a work is legally classified as "made for hire":

• Work created by an employee within the scope of their employment: If an individual creates a work as part of their regular job duties for an employer, the employer typically owns the copyright. The key here is that the work must be directly related to the employee's job responsibilities and performed during their working hours or using company resources.
• Certain specially ordered or commissioned works with a written agreement: For works created by independent contractors or freelancers, it can only be a "work made for hire" if two conditions are met:
  1. The work falls into one of nine specific categories defined by copyright law (e.g., a contribution to a collective work, a part of a motion picture, a translation, a compilation, an instructional text, a test, or an atlas).
  2. Both parties explicitly agree in a signed written contract that the work will be considered a "work made for hire." Without such a written agreement, an independent contractor generally retains the copyright to their creations, even if they were paid for the work.

Understanding whether a work is "made for hire" is crucial because it determines who holds the valuable copyright ownership from the moment the work is created, impacting who can license, sell, or control its use.

Examples:

• Employee within Scope of Employment: A marketing specialist employed by a large retail company designs a new advertising campaign, including slogans, graphics, and video scripts, during her regular office hours using company equipment. She is paid a salary for her work.

  Explanation: Because the marketing specialist is an employee and creating advertising materials is directly within the scope of her job responsibilities for the company, this entire campaign is a work made for hire. The retail company, not the individual specialist, owns the copyright to all elements of the campaign.

• Commissioned Work with Written Agreement: A documentary film production company hires a freelance composer to create an original musical score for their upcoming film. Their detailed written contract explicitly states that the score is a "work made for hire" and falls under the category of "a part of a motion picture or other audiovisual work."

  Explanation: Even though the composer is a freelancer (an independent contractor), this musical score qualifies as a work made for hire because it's a "part of a motion picture" (one of the specific categories) and there is a clear, signed written agreement designating it as such. The production company owns the copyright to the musical score.

• Not a Work Made for Hire (Independent Contractor without Agreement): A freelance photographer is hired by a local restaurant to take professional photos of their new menu items for use on their website and social media. There is no written agreement between the photographer and the restaurant stating that the photos are a "work made for hire," nor do photographs typically fall into one of the specific categories for commissioned works (unless they are part of a larger compilation or collective work, which is not specified here).

  Explanation: In this situation, the freelance photographer, as an independent contractor, would generally retain the copyright to the photographs. The restaurant would likely have a license to use the photos for their specified purposes, but not outright ownership of the copyright, because the conditions for a work made for hire were not met (no specific category, no written agreement). To own the copyright, the restaurant would need a separate written agreement assigning the copyright from the photographer to the restaurant.