Work for hire is any created work that can be copyrighted like songs, stories, essays, sculptures, paintings, graphic designs, or computer programs. In the U.S., work for hire — shorthand for the term "a work made for hire" — applies if the created piece is part of a person's job or made by an independent contractor.
Instead of the creator keeping the copyrights, the copyright and publishing rights belong to their employer. For example, when a staff writer drafts a blog for his employer, the company becomes the author and assumes the copyrights for the blog. All areas of copyright ownership now belong to the company, including credit for the blog and control of the blog. Work for hire is part of the U.S. Copyright Act of 1976 and changed the go-to rules of copyright ownership. Work for hire applies in two situations:
Copyright protection allows the employer sole rights to use the work for financial gain under work for hire. When a company hires a person and pays for the created piece, they retain copyright ownership under work for hire. The work's creator has no rights to the work under work for hire.
Any work created by a company employee during the course of employment is automatically owned by the company he works for. To decide whether a work falls under employee creation, the courts will ask three questions:
Companies that aren't sure if a person would qualify as an employee or whether the work falls within the employee's responsibilities should get a written copyright agreement. In California, labor laws create somewhat of a loophole concerning contractor work. The law basically states that any person under contract creating any work that both contractor and employer agree to is automatically considered work for hire. Work for hire in California may cause a typical contractor-employer relationship to become employee-employer at the loss of the client. Freelance workers beware: Keep from making freelance agreements based in this state to save yourself a potential legal headache. If you work as an independent contractor, anything you create can only be considered a work for hire if it falls into one of these nine categories:
Even if a contractor's work clearly falls into one of these categories, a written agreement stating a work for hire is needed to protect the company.
In the songwriting realm, a work-for-hire situation normally comes about when an artist creates music for other media. For example, when composers create jingles for commercials, it makes sense that the company would keep copyrights. Without copyrights, the company couldn't use the jingle in future commercials. When musicians hire songwriters to help record a song under work for hire, the songwriter can lose out in a major way. While she gets paid a one-time fee, which might be substantial, she has no rights whatsoever to future earnings from royalties of that song. If a songwriter's contribution to the final recording is significant, like hooks or lyrics, she should try to obtain written credit early in the recording process. If the musician isn't willing to give credit, don't work with that artist again. Songwriters should always have a lawyer look over any agreements.
As an employee or contractor selling work as a work for hire, the copyrights belong to the company from the moment creation begins. When a copyright gets assigned, the rights are sold to another party. You can sell the copyrights to your works as long as they aren't works made for hire. The difference between work for hire and copyright assignment: After 35 years, you can cancel the assignment.
When you create a work for hire, you can never stop the company from using it. Even if you get fired in the middle of the project, the company can use what you created. If a company owes you money for a work for hire and you've finished the project, the company can publish it before paying you. If you have a contracted agreement to assign copyright upon payment, you will get paid before the company can use your work because you control the rights until you assign them. If you wanted to use that work-for-hire piece in your portfolio, you'll have to ask the company first. If you agree in writing to transfer the copyright, but with the provision, you can use the piece in your portfolio. Sometimes in contracts, a work isn't called a work made for hire, but copyrights transfer once you sign. If what you create doesn't fall into the contractor work-for-hire categories, you can assign the copyright with your terms. If you're unsure about a contract or copyrights, contact a lawyer.
For companies protecting their interests:
If the person paying you dictates the work you do and when you do it, you're probably an employee.
Instead of a work-for-hire agreement or copyright assignment, issue a license on your work.
When an artist grants a license to her work, she stays the owner and decides when, where, and how the work is used.
If you need help with work for hire, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.