Works for Hire

Ownership of Copyrights in Your Commissioned Project

Works for hire or “Works made for hire” is a statutorily defined category of works for which copyright ownership is transferred from artists and other creators to the party who commissioned their creative work (e.g., an employer or contracting enterprise). The work made for hire statute vests copyright ownership in the employer or commissioning party rather than the individual who actually created the work. However, the doctrine doesn't apply in every situation. There is some nuance in determining what constitutes a work made for hire. If you are in the content creation business or work with artists and creators, it important to be able to identify who holds the copyrights in commissioned works. The default presumption under copyright law is that the creator retains ownership, unless the work is made by an employee in the scope of their employment, or the work falls within a narrow set of statutory categories and is expressly designated as a work made for hire in a signed contract. Thus, clear, written agreements in the context of commissioned works are an important tool for avoiding later copyright disputes and loss of rights.

Common Misconceptions About "Works Made For Hire"

There are several persistent misconceptions surrounding the “work made for hire” doctrine that can lead to costly legal disputes. One of the most common misunderstandings is the belief that employers automatically own all works created by their employees, regardless of when or how the work was produced. In reality, for a work to qualify as a work made for hire under 17 U.S.C. § 101(1), it must be created within the scope of employment. If an employee creates a work entirely on personal time, using personal resources, and outside the duties of their job, the employer may not have any ownership rights.

Another common error is assuming that any work created by an independent contractor can be designated as a work made for hire with a simple clause in a contract. In fact, under 17 U.S.C. § 101(2), such a designation is only valid if the work falls into one of nine specific statutory categories and there is a written agreement stating the work is made for hire. Misconceptions also arise when parties attempt to retroactively assign work-for-hire status after the work is completed, which courts have consistently rejected. Finally, some mistakenly believe that payment alone—without a written agreement or qualifying employment relationship—confers copyright ownership. It does not.

Errors in contractual arrangements with graphic designers, authors, videographers, and other commonly commissioned content creators can lead to disputes about what you are lawfully able to do with things like logos, ad copy, audiovisual work like commercials, and other creative content for which you have paid.

Understanding the "Works Made For Hire" Doctrine

Under the Copyright Act, a work is considered a “work made for hire” in one of two scenarios: (1) the work is prepared by an employee within the scope of their employment, or (2) the work is specially ordered or commissioned for use in one of nine enumerated categories, and there is a written agreement signed by both parties stating that the work is a work made for hire.

When a work qualifies under this doctrine, the employer or commissioning party, not the individual creator, is deemed the legal author and owner of the copyright from the outset. This can have significant implications for rights of reproduction, distribution, licensing, and enforcement. For employees, ownership generally rests with the employer if the work is created as part of their job duties. For independent contractors, however, the criteria are more stringent, and without a properly executed written agreement and qualification under the statutory categories, copyright remains with the creator.

Given the potential for disputes, parties involved in creative work should carefully consider copyright ownership and memorialize their intentions in writing at the outset of the engagement.

Employee Contributions Within Scope of Employment

Works created by employees during their employment typically belong to the employer unless stated otherwise in a contract. This principle is rooted in the understanding that an employee’s contributions within the scope of their employment are made for the benefit of the employer. Under US copyright law, a work made for hire includes works prepared by an employee within the boundaries of their job responsibilities, including the work’s creation.

Typically, ownership rights of works created by employees are assigned to the employer, emphasizing that the creator does not retain the copyrights. However, the absence of a written agreement can lead to disputes over ownership, as the presumption of a work being for hire may only be overridden by evidence to the contrary. The status of a worker as an employee or independent contractor cannot be gamed. The status of the individual as an employee or independent contractor is defined by agency law and is determined by the nature of the relationship with the party commissioning the work, such as the level of control by commissioning party, the creator's tax treatment, and eligibility for employee benefits. Thus, attempts to control the ownership of copyrights in a commissioned work by characterizing an independent contractor as an employee are ill-advised and will not work.

Employee or Independent Contractor Work?

Understanding whether a creator is an employee or an independent contractor is essential before commissioning any creative work, as this classification directly impacts copyright ownership. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the U.S. Supreme Court emphasized that the definition of “employee” under the Copyright Act must be drawn from common law agency principles. The case involved a nonprofit organization (CCNV) that commissioned a sculptor, James Reid, to create a statue. Although CCNV provided direction and funding, but Reid worked independently, using his own tools and studio, and retained full discretion over the creative process. The Court determined that Reid was an independent contractor, not an employee, and therefore the statue could not be classified as a work made for hire under § 101(1). This case highlights the importance of correctly identifying the creator’s status before work begins and, where the creator is an independent contractor, executing a clear and thorough written agreement in advance.

Clear, written agreements are crucial to delineate ownership rights and avoid potential conflicts. Both employers and employees need to understand the extent of their rights and responsibilities regarding the works created during employment, especially when the parties expressly agree on specific terms.

Independent Contractors and Commissioned Work

Independent contractors and commissioned work is treated differently under the work for hire doctrine. For a work to be classified as made for hire, the work must be (1) specially commissioned for specific uses like motion pictures, translations, compilations, tests, and atlases and (2) created under a signed agreement identifying the commissioned work as a work for hire. Works created by independent contractors must meet these criteria in order for the ownership of the work to be transferred from the independent contractor to the commissioning party.

For a work to be ‘specially commissioned’ under copyright law, it must be ordered by the hiring or commissioning party, agreed in writing as a work made for hire, and fit one of nine specific categories defined by the Copyright Act. The hiring party provides the specifications for the commissioned work, but doesn’t need exert full artistic control over the final product.

Categories of "Works Made For Hire"

As discussed above, the “work made for hire” doctrine applies to two distinct scenarios: (1) works created by employees within the scope of their employment, and (2) certain commissioned works, but only if they fall within one of nine specific categories enumerated in Section 101 of the U.S. Copyright Act and if there is a written agreement stating that the work is to be considered a work made for hire. These categories are narrowly defined and apply only in limited circumstances. Below is a summary of each category:

1. Contribution to a Collective Work
   This includes works created to be part of a collective whole, such as a magazine, anthology, encyclopedia, or periodical. The individual contribution may be treated as a work made for hire if commissioned for that purpose.
2. Part of a Motion Picture or Other Audiovisual Work
   Includes commissioned scripts, footage, animations, or other contributions intended to be incorporated into films, television programs, or other audiovisual media.
3. Translation
   A commissioned translation of a work from one language to another may qualify as a work made for hire if agreed to in writing.
4. Supplementary Work
   These are works that support or augment another author’s work, such as forewords, afterwords, illustrations, maps, charts, or editorial notes.
5. Compilation
   A commissioned work that involves the assembly of preexisting materials or data, selected and arranged in a way that results in an original work of authorship, may fall under this category.
6. Instructional Text
   Educational or training materials prepared for use in teaching or instruction, such as textbooks or manuals, can be designated as works made for hire if properly contracted.
7. Test
   Includes standardized tests or other formal assessment tools designed to evaluate knowledge, skills, or performance.
8. Answer Material for a Test
   This refers to materials that accompany tests, such as scoring keys, rubrics, or model answers.
9. Atlas
   Cartographic or geographic compilations presented in book or digital format can qualify if they are specifically commissioned under a valid work-for-hire agreement.

Written Agreements: The Importance of Clear and Timely Agreements

To classify a commissioned work as a “work made for hire” under U.S. copyright law, there must be a written agreement executed before the work is created. This agreement must be signed by both parties and must explicitly state that the work is a “work made for hire.” Courts have consistently emphasized that without such a written agreement, the default rule applies: the creator retains copyright ownership, regardless of the commissioner’s expectations or financial investment in the project.

Timely Written Agreement - Gladwell Government Services, Inc. v. County of Marin, 265 F. App'x 624 (9th Cir. 2008)

In Gladwell, the plaintiff, a government services contractor, alleged copyright infringement based on the unauthorized use of retention schedules it developed. Crucially, some of the materials in dispute had been created before the parties entered into a contract. The court held that these “Pre-Existing Materials” could not be retroactively designated as works made for hire because there was no written agreement executed before creation expressly stating that the works would be treated as such. The agreement's generic ownership clause did not suffice to transfer copyright ownership under 17 U.S.C. § 204(a). As a result, the plaintiff retained ownership and had standing to sue for infringement. The court emphasized that any assignment or work-for-hire designation must be made through a signed writing executed before the work is created.

Statutory Categories - Warren v. Fox Family Worldwide, Inc., 171 F. Supp. 2d 1057 (C.D. Cal. 2001)

Warren v. Fox Family Worldwide dealt with statutory categories of works eligible for commissioned work-for-hire treatment. Composer Richard Warren claimed ownership in over 1,900 musical compositions he created for the television series Remington Steele. Although Warren worked as an independent contractor, the court found that the compositions were works made for hire under 17 U.S.C. § 101(2) because the contracts fell within the statutory category of “a part of a motion picture or other audiovisual work.” The written agreements explicitly stated that the compositions were created as works made for hire and that the producer would own all rights. The court held that such musical works created specifically for use in a television series fell squarely within the statutory categories, and Warren, not being the legal or beneficial owner, lacked standing to bring a copyright infringement claim​.

In contrast, in the Community for Creative Non-Violence v. Reid case discussed above, the work was a sculpture and did not qualify under 17 U.S.C. § 101(2) because it did not fall into one of the nine statutory categories of commissioned works eligible for work-for-hire treatment.

These cases underscore the importance of precise and timely agreements and proper subject matter. Even where there is a working relationship or financial exchange, courts will not infer work-for-hire status without an express, pre-creation agreement. To avoid disputes, parties commissioning creative work should consult a copyright attorney before the work begins to ensure proper contractual language is included. Attempting to retroactively assign work-for-hire status after a work is completed is legally ineffective and will not shift ownership away from the original creator.

Copyright Ownership and Rights

When a work qualifies as a “work made for hire” under the Copyright Act, the employer or commissioning party is considered the legal author and automatic owner of the copyright from the moment of creation. This has important legal and commercial implications, as it eliminates the creator’s rights to control or reclaim the work in the future. The copyright never vests in the creator at all, thereby avoiding the need for any subsequent transfer, assignment, or license. The employer or commissioning party of a work for hire can directly apply for copyright registration of the commissioned work as legal author, rather than an assignee.

Advantages Over Assignments and Other Transfers of Copyrights

Commissioned works that qualify as works for hire are considered the work of the commissioning party and thus are not subject to some of the disadvantages of other forms of copyright transfers. To illustrate, when a copyright is initially owned by the creator and later transferred by assignment or is licensed, the transfer is subject to certain statutory limitations. Most notably, under 17 U.S.C. § 203, authors have a right to terminate a copyright assignment or license 35 years after its execution, even if the agreement states otherwise. This termination right does not apply to works made for hire. As a result, the commissioning party in a work-for-hire scenario benefits from long-term certainty of ownership and control without the risk of future reclamation by the creator or their heirs.

The employer or commissioning party of a work for hire can also directly apply for copyright registration of the commissioned work as legal author, rather than an assignee.

Copyright Term of a Work Made for Hire

The duration of protection for works made for hire is different from that of individually authored works. Instead of lasting for the life of the author plus 70 years, a work made for hire is protected for 95 years from publication or 120 years from creation, whichever expires first. This term provides a more predictable term, eliminating mortality risks, and facilitates long-term planning for licensing, enforcement, and commercialization of creative assets.

Copyright Assignments Where Work for Hire Doctrine Does not Apply

In situations where the work made for hire doctrine does not apply, such as when a work is created by an independent contractor outside the statutory categories or without a qualifying written agreement, copyright ownership remains with the creator. In these cases, a properly executed copyright assignment is essential to transfer rights from the creator to the hiring party. A copyright assignment is a written agreement in which the original author expressly transfers some or all ownership rights to another party.

This assignment mechanism provides a legally enforceable means of acquiring copyright, even when work-for-hire status cannot be established. Assignments must comply with 17 U.S.C. § 204, which requires the agreement to be in writing and signed by the copyright holder or an authorized agent thereof. Hiring parties should seek assignment agreements before work begins or at the time of engagement to avoid disputes over ownership. Unlike work-for-hire, however, assignments remain subject to statutory termination rights after 35 years.

Conclusion

The “Works Made For Hire” doctrine is a central feature of the law regarding copyright ownership and rights. Employers, entrepreneurs, and creators should be aware of it. Those who remain ignorant of the work for hire doctrine do so at their peril. Consulting a copyright attorney prior to a transaction for a commissioned work is a prudent practice. You want to ensure all legal protections are in place before entering into any agreement. If you need assistance with a contract for a commissioned creative work or other copyright matters, please contact our office for a free consultation.

© 2025 Sierra IP Law, PC. The information provided herein does not constitute legal advice, but merely conveys general information that may be beneficial to the public, and should not be viewed as a substitute for legal consultation in a particular case.