The first step in understanding a work made for hire is to understand the concept of a copyright and understand how to protect what you create. A copyright is defined under Title 17 of the United States Code. It protects “original works of authorship” such as written text, music, artwork, pictures, recordings and other intellectual works. You are not required to publish your work in order for it to be protected under copyright laws. Under the 1976 Copyright Act, the owner of a copyright has the exclusive right to:
· Make copies or reproductions of the work
· Prepare other works based on the original work
· Distribute copies of the work to the public by sale, rental, lease or transfer
· Perform the work in public
· Display the work publicly
A copyright exists from the moment the work is created in a fixed form (i.e. you type a document, handwrite a document, etc.). In other words, the copyright in a work immediately vests with the author who created the work as soon as he or she puts the work into a tangible format (i.e. written word or recorded sound) for the first time. For any original work created on or after January 1, 1978, an automatic copyright is granted to the author for the term of his or her life plus 70 years.
What are works made for hire?
Works made for hire are original works that are subject to copyright laws but the ownership is not vested with the author. With works made for hire, the ownership and the copyright will be vested with another person. There are two types of work made for hire:
(1) A work that is created by an employee within the scope of his or her employment or
(2) A work that is ordered or commissioned to be created by an independent contractor to be used as a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, supplementary work, a compilation, an instructional text, a test, answer material for a test or an atlas provided that the parties expressly agree in writing that the work is to be considered work made for hire.
Protecting a work made for hire
For the ownership and copyright to revert to the person who “specially ordered or commissioned” the work, the work must be created as part of an employer/employee relationship or fall within one of the nine categories of works listed in number two above and the parties must also have a written agreement specifying that the work is a work made for hire. Therefore, if you hire someone, who is not a regular employee, to create something for you, you must have a written assignment of the copyright ownership in order to protect yourself. A work made for hire copyright exists for 95 years from publication or 120 years from the date of creation, whichever is shorter.
Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida. She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets. More information about patents and other IP may be found at www.IngenuityLaw.com.