Why We Wrote This Guide
Work for Hire agreements are a popular mode of contractual interaction between various people and entities in the music business. Due to the nature of these agreements and the copyrights involved, songwriters, recording artists, and other creators must understand what a Work for Hire agreement is and what it implies for their creative work.
Contents
Why We Wrote This Guide
Work For Hire Agreements
A. Work Completed by Employee Within Scope of Employment
B. Work Created by Independent Contractors or Freelancers
Work For Hire Copyright Duration
Work For Hire Termination Rights
Sources
Work For Hire Agreements
The U.S. Copyright Office defines a work made for hire as “a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
In non-legalese, a work for hire occurs when Party A employs Party B to create something, but Party A becomes the legal author of the work. In the eyes of the law, Party B will no longer have any rights to the work whatsoever.
Section 101 of the Copyright Act sets out a few technical qualifications a work must meet in order to be considered a work for hire:
A. Work Completed by Employee Within Scope of Employment
An employee must create the work within the scope of employment. To constitute “employment,” the employer must direct the work in a specific way.
Although the U.S. Copyright Act does not clarify the distinction between what does and does not constitute the scope of employment, Community for Creative Non-Violence v. Reid, 490 U.S. 730 [1989] helps clarify. In this case, the Supreme Court held that a Vietnam War memorial statue did not constitute a “work for hire” because the people who paid to have it made did not exercise any control over the details of the statue, did not supply the tools, did not maintain an employment relationship with the artist, etc.
B. Work Created by Independent Contractors or Freelancers
The above situation only applies when the work’s creator is an employee, not an independent contractor. The question of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to several factors to decide whether an employer-employee relationship exists. These factors include: the hiring party's right to control the manner and means by which the product is finished, the source of the equipment and tools, the location of the work, the duration of the relationship between the parties, the extent of the hired party's discretion over when and how long to work, the method of payment, the hired party's role in hiring and paying assistants, and more.
If a work is not created by an employee under the scope of employment, it can only be a work for hire if it meets ALL of the following conditions: the work is commissioned by someone, the work is created under a written agreement, and the work is created for use as:
1: A motion picture or audiovisual work: This is the most popular area of the music industry in which songs might be considered works for hire. A work for hire for a motion picture or audiovisual work might include musical scores, credit music, theme songs, etc.
A Hypothetical Example: Big Bob Film Studio signs a work for hire agreement with Frankie Bones for the song “Put It In The Dryer” for the animated film My Clothes Are Wet But I Still Love You. Bib Bob Studios becomes the “author” of the work and owns all rights to it. Note that film studios which commission works for hire often include the name of the songwriter in various media, though this songwriter would still most likely not receive any royalties from the song. The songwriter does not need to be an employee because they were commissioned, there is a written agreement, and the song is for a movie—thus, it meets all criteria to qualify as a work made for hire.
2: A collective work: A collection of individual works, known as a collective work, does not require employment because each work is independently capable of copyright. Examples of a collective work for hire might be an anthology of short stories, a magazine with articles, or an encyclopedia.
3: A compilation: A compilation differs from a collective work, although a compilation can include collective works. However, a compilation can include works that are not separately copyrightable. A good example might be a reference index to Shakespeare's "The Tempest."
4: A translation of a foreign work: This could be in any language. For example, a book publisher can hire a translator as a work for hire.
5: A supplementary work: This is a work which acts to enhance or complete a previous work, such as an introduction to a book.
6: An Instructional Text: A literary, pictorial, or graphic work prepared for publication and intended to be used in systematic instructional activities.
7: Tests/Answer Material for Tests: Creating tests or solutions to tests; most commonly present in the educational system.
8: An Atlas: A work containing facts and history about places in the form of a book or collection of maps.
Work For Hire Copyright Duration
A work for hire does not have the same copyright duration as other works. A work for hire copyright will last 95 years from publication (distribution to the public) OR 120 years after creation (written or recorded in tangible form).
Work For Hire Termination Rights
The right of termination specified by the 1978 Copyright Law allows one to reclaim a copyright 35 years after transferring ownership to another party, as long as the original owner completes certain requirements. No termination rights exist for a work for hire. The reason is that technically no transfer occurred in the first place. The original creator of the work does not exist in the eyes of copyright law. The person or company who commissions the work owns it as if they created it themselves.
Sources
https://www.copyright.gov/circs/circ09.pdf
https://www.owe.com/resources/legalities/4-what-is-work-made-for-hire/
https://www.americanbar.org/groups/young_lawyers/publications/tyl/topics/intellectual-property/copyrights_and_works_made_hire.html
https://www.rocketlawyer.com/article/what-is-work-for-hire-agreement-cb.rl
https://www.marktysonlaw.com/blog/works-made-for-hire
https://www.thebalancesmb.com/what-should-be-included-in-a-work-for-hire-agreement-4587459
Composed by Luke Evans, Mamie Davis, Jacob Wunderlich, Rene Merideth, Jeff Cvetkovski, & Aaron Davis
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