Who Should Use a Work for Hire Contract?

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Work For Hire is a concept derived from U.S. copyright law that provides ownership of copyrighted materials to a company rather than an individual employee. Works created by an employee during their regular workweek, as well as many commissioned projects completed by independent contractors, are usually protected by the work-for-hire law.

Generally, the author of the work or the person who developed the work owns the copyright. An exception to this general norm is the work-for-hire doctrine, which vests ownership of the copyright in the author’s employer or the person for whom the author prepared the work.

In simpler terms, work made for hire covers the legal ownership of copyrighted contents. When one entity (typically a business) hires someone (such as an employee) to create something for them, the work done belongs to the hiring entity and not the individual who created it.

Under the work-for-hire doctrine, Work For Hire can only exist under two circumstances:

  • Work prepared by an employee that is within their scope of employment. Any work created by an employee that is within their scope of employment is considered Work For Hire. For example, if an engineering firm hires an engineer to produce software or hardware, the work-for-hire concept takes effect, and the engineer’s innovations are the company’s property. Work-for-hire law applies as long as the work is created within the scope of what an employee was employed to do.
  • Work created by independent contractors. In this case, the work must be explicitly ordered, which means that the service provider must be rewarded for developing something new. Prior to creating the work, both parties must enter into a signed and written agreement that the work will be considered Work For Hire. Most importantly, the work must fall under one of the nine statutory categories of commissioned works under the Copyright Act.

Work For Hire applies to work specifically ordered or commissioned for use as long as it falls under the following nine categories:

  • A contribution to a collective work
  • A part of a motion picture or other audiovisual work
  • A translation
  • A supplementary work
  • A compilation
  • An instructional text
  • A test
  • Answer material for a test
  • An atlas

In this article, we will focus on commissioned works produced by some professionals.

Graphic Designers

Graphic designers are visual communicators who draw or use specialized graphic design software to produce visual arts. They communicate ideas to inspire, inform, or captivate consumers through both physical and virtual art forms.

Graphic designers typically seek work that allows them to be flexible, something full-time employment does not provide. As a result, many of them choose work-for-hire arrangements.

Work For Hire agreements are popular among companies looking to recruit freelance graphic designers. Companies who want to be sure they own the copyright of the artworks typically require graphic designers to sign a Work For Hire contract before employment begins. This guarantees that the firms will have sole ownership of the copyright to the works created by their paid graphic designers.

Most graphic designers who apply for jobs have no intention of receiving copyright credits and are aware that a portion of their salary is for copyright compensation. Some of them, though, may wish to gain the copyright of their own works. Companies choose to have a Work For Hire contract ready to lay out the terms and agreements of the employment for reasons such as this.

Musicians

Musicians compose, perform, and record music. They receive training in certain musical genres and can play multiple instruments.

Under copyright law, when someone creates something with at least a minimal amount of originality, they own it unless and until they transfer it to someone else in writing. In the music industry, the Work For Hire agreement is used to transfer rights from persons who contribute to recordings.

For example, when musicians record a song. Because they are independent contractors, people who contribute to the recording own their contributions to the master, or the original recording of the song, until they transfer ownership to their employer in writing. As a result, the producer, musicians, and singers who contribute to the master will typically have a work-for-hire provision in their contracts, transferring ownership to the employer.

Writers

Writers are responsible for presenting ideas through writing in accordance with a set of guidelines or a specific style. Their duties include conducting research, writing, revising drafts, and amending a writing project in response to the client’s or editor’s feedback.

As copyright determines commercial ownership and ability to directly profit from the work, it’s in the writers’ best interests to understand which arrangements will ensure they retain copyright ownership (which in most cases is theirs by default) and when the copyright belongs to a third-party commissioning their work.

If you’re a freelance writer looking for work, it’s critical that you understand the conditions of any deal you’re considering. Writers working for hire who want credit for their work should ask the commissioning party to do so. Otherwise, the commissioning party is not required to give you credit. Many freelance authors refuse to sign Work For Hire agreements as they deemed their works their own and no one else’s. The few ones who do demand large sums of money.

Filmmakers

Filmmakers are responsible for creating, directing, and developing movies. It is a career that allows them to use their leadership as well as creative thinking skills to lead and direct major motion pictures or made-for-television films.

As a result of standard U.S. copyright laws, the majority of filmmakers are quite likely to have encountered instances in the past when the work they made was owned by their employer rather than them. In fact, production companies rely heavily on copyright laws in the film industry. If filmmakers have ever worked for a production company, there’s a good chance that their work contract stated that it was a Work For Hire agreement, meaning that any work produced during their time with the company was not theirs, but was legally owned by the production company that hired them.

Translators

Translators convert written material from one or more source languages into the target language, ensuring that the translated version accurately reflects the original.

It is important for translators to have a thorough awareness of their rights and the legal status of translations, both to prevent ambiguity in their contracts and to confidently embark on discussions with publishers.

Contrary to popular belief, translations are not simply renderings of work in a new language; they are, legally speaking, new works that incorporate some elements or the entirety of pre-existing works while adding new copyrightable authorship and are entitled to copyright protection to the extent of their original characteristics.

Since translation is one of the nine categories listed in the Copyright Act, translators should check for words in their contracts’ transfer of rights clauses like “the translation is a work made for hire” or “is being commissioned as a work made for hire.” If they sign a contract stating that their translation is a Work For Hire, the publisher becomes the legal owner of the copyright and they lose all rights.

See other legal documents that you may use to protect your rights

Most people believe that they own the rights to any work they have paid for. You may not necessarily own the rights to the work you commissioned without a signed Work For Hire contract in place. Further, there may be ambiguity about how each party can use the work done without an established Work For Hire agreement. For both parties, this ambiguity might lead to serious legal and financial issues.

Prior to commissioning or expressly ordering work to be conducted on your behalf, it is important to enter into a valid and enforceable Work For Hire contract. The work-for-hire understanding has to be explicitly written into a contract that’s signed by both the employer and the contractor. While Work For Hire is applied to employee work by default, it must be written and signed for it to apply to contract work.

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