Work Made For Hire (May Not Be)

That’s not necessarily so.

1. The general rule is: if you create copyrightable material, you are called the “author” of that material and you own the copyright.
2. That general rule doesn’t apply if you created the material as “work made for hire” (WMFH).
3. If the work truly is WMFH, the employer or commissioning party is considered the author of the work and owns the copyright. It’s like you never existed.
4. However: there are only two scenarios under which your work can be WMFH: a.) if you created the work in the course of your employment; or b.) if you were commissioned to create the work by a third party AND there was a written WMFH agreement in place before you created the work AND the work itself falls into one of nine statutory categories.
5. The nine categories are: i.) contribution to a collective work; ii.) part of a motion picture or other audiovisual work; iii.) a translation; iv.) a supplementary work; v.) a compilation; vi.) an instructional text; vii.) a test; viii.) answer material for a test; or ix.) an atlas.
6. If commissioned work doesn’t fall into one of the nine categories, it’s not WMFH, no matter the contract says.
7. If the parties really intend for commissioned work to be WMFH, and the work doesn’t fall into one of the nine categories, the only way to transfer copyright to the commissioning party is with a properly drafted assignment agreement.

Whether you are the creator or the commissioning party, Russell Law can help you draft agreements to effect your true intentions.