Work for Hire: Everything You Need to Know
Work for hire is any created work that can be copyrighted like songs, stories, essays, sculptures, paintings, graphic designs, or computer programs.6 min read
2. Copyrights: Employees vs. Independent Contractors
3. Songwriters, Beware
4. Work for Hire vs. Copyright Assignment
5. Work for Hire Do's and Don'ts
6. Frequently Asked Questions
Updated July 13, 2020:
Work for Hire: What Is It?
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:
- An employee creates work during her normal functions as an employee
- An independent contractor completes a commissioned piece of work
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.
Copyrights: Employees vs. Independent Contractors
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:
- Was the work the kind the employee was hired to do?
- Did the work mostly occur during approved work hours?
- Was the work done, at least partly, to serve the company?
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:
- Contributions to collective works like encyclopedias, magazines, or anthologies. Collective works are many separate and independent works combined into a whole.
- Part of a movie or other audiovisual piece
- Supplementary work published alongside work by another author to clarify, illustrate, or comment on. Supplementary works include forewords, afterwords, pictorial illustrations, charts, tables, indexes, bibliographies, and appendices.
- Compilations of preexisting material that's chosen, organized, and arranged in a way that the end piece forms an original work.
- Instructional works such as literary, graphic, or pictorial creations prepared for publishing for use in instructional activity.
- A test
- Answer material for tests
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.
Work for Hire vs. Copyright Assignment
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.
Work for Hire Do's and Don'ts
For companies protecting their interests:
- Do get a signed, written agreement specifying that something is a work for hire for every time the company wants copyrights to the piece.
- Do make sure any work-for-hire agreements between the company and nonemployees fall into the nine specific categories.
- Do consider a copyright transfer agreement when work from an independent contractor doesn't fall into one of the nine categories.
- Do know state laws regarding work-for-hire agreements to ensure compliance with taxes and workers' compensation laws.
- Do have agreements notarized if you think it's necessary.
- Don't forget to include specifics in contracts, including the expected work, payment terms and amounts, and deadlines.
- Don't rush your contractor to sign an agreement, which will help reduce the likelihood of rebuttal later on.
- Don't assume both parties agree to specific expectations if they're not written in the contract.
- Don't hesitate to contact a lawyer to overlook complicated agreements.
- Do review an agreement completely and thoroughly, making sure all key points are present.
- Do make sure the agreement clearly lays out the work you're expected to do, the amount you're being paid, when you'll get paid, and deadlines.
- Do ask for a copy of the written agreement.
- Do contact a lawyer if you're unsure about an agreement's terms.
- Don't enter into an agreement if you're not sure what it says.
- Don't sign a contract without reading all the details.
- Don't enter into a work-for-hire contract if you're not sure what that means.
Frequently Asked Questions
- Am I an employee or not?
If the person paying you dictates the work you do and when you do it, you're probably an employee.
- What do I do if I want any control over my work?
Instead of a work-for-hire agreement or copyright assignment, issue a license on your work.
- What's a license?
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.