Editing Work made for hire

==Introduction==

Under the [[1976 Copyright Act]] as amended, a [[work]] is protected by [[copyright]] from the moment it is [[created]] in a [[fixed]] form. Although the general rule is that the person who [[created|creates]] a work is the [[author]] of that [[work]], there is an exception to that principle. Copyright law provides that if a work is ''made for hire,'' the [[employer]], and not the [[employee]], is considered the [[author]]. The [[employer]] may be a firm, an organization, or an individual.

== Statutory definition ==

[http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000101----000-.html Section 101] of the [[1976 Copyright Act]], defines a '''work made for hire''' as:

{{Quote|(1) a [[work]] prepared by an [[employee]] within the scope of his or her employment; or
(2) a [[work]] specially ordered or commissioned for use as a contribution to a [[collective work]], as a part of a [[motion pictures|motion picture]] or other [[audiovisual works|audiovisual work]], as a translation, as a supplementary work, as a [[compilation]], as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 

For the purpose of the foregoing sentence, a "supplementary work" is a [[work]] prepared for [[publication]] as a secondary adjunct to a [[work]] by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, [[map]]s, [[chart]]s, [[table]]s, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ''instructional text'' is a [[literary works|literary]], [[pictorial]], or [[graphic work]] prepared for [[publication]] and with the purpose of use in systematic instructional activities.}}

== Determining Whether a Work Is a “Work Made for Hire” ==

Whether or not a particular [[work]] is made for hire is determined by the relationship between the parties. This determination may be difficult, because the statutory definition of a work made for hire is not always easily applied. The [[U.S. Supreme Court]] in [[CCNV v. Reid|Community for Creative Non-Violence v. Reid]] [http://supreme.justia.com/us/490/730/], 490 U.S. 730 (1989), held that to determine whether a [[work]] is made for hire, one must first ascertain whether the [[work]] was prepared by (1) an employee or (2) an independent contractor.

If the [[work]] is created by an employee, Part 1 of the statutory definition applies, and generally the [[work]] would be considered a work made for hire. If the [[work]] is created by an independent contractor (that is, someone who is not an employee), then the [[work]] is made for hire only if Part 2 of the statutory definition applies. Such a [[work]] can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in Part 2 of the definition and (2) there is a [[written]] [[agreement]] between the parties specifying that the [[work]] is a work made for hire.

== Determining Whether Someone is an Employee ==

If a [[work]] is created by an [[employee]], Part 1 of the work made for hire statute applies. To help courts determine when someone is an [[employee]], the [[U.S. Supreme Court|Supreme Court]] in [[CCNV v. Reid|Community for Creative Non-Violence v. Reid]] [http://supreme.justia.com/us/490/730/] identified a list of factors that characterize an “employer-employee” relationship as defined by agency law:

* Control by the [[employer]] over the [[work]] (e.g., the [[employer]] may determine how the [[work]] is done, has the [[work]] done at the employer’s location, and provides equipment or other means to create the [[work]])
* Control by [[employer]] over the [[employee]] (e.g., the [[employer]] controls the [[employee]]'s schedule in [[created|creating]] [[work]], has the right to have the [[employee]] perform other assignments, determines the method of payment and/or has the right to hire the [[employee]]'s assistants)
* Status and conduct of [[employer]] (e.g., the [[employer]] is in business to produce such [[work]]s, provides the [[employee]] with benefits, and/or withholds tax from the [[employee]]’s payment)

The [[U.S. Supreme Court|Court]] held that these factors are not exhaustive. The court left unclear which of these factors must be present to establish the employment relationship under the work for hire definition, but held that supervision or control over creation of the [[work]] alone is not sufficient.

All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a [[work]] created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise). Examples of works for hire created in an employment relationship are:

*A [[computer program|software program]] created within the scope of his or her duties by a staff programmer for Creative Computer Corporation.
*A newspaper article written by a staff journalist for publication in the newspaper that employs him.
*A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.
*A [[sound recording]] created by the salaried staff engineers of ABC Record Company.

The closer an employment relationship comes to regular, salaried employment, the more likely it is that a [[work]] created within the scope of that employment would be a work made for hire.

== Who Is the Author of a Work Made for Hire? ==

If a [[work]] is a work made for hire, the employer or other person for whom the work was prepared is the [[author]] and should be named as the [[author]] in Space 2 of the application for copyright registration. The box marked “work-made-for-hire” should be checked “yes.”

== Who Is the Owner of the Copyright in a Work Made for Hire? ==

If a [[work]] is a work made for hire, the [[employer]] or other person for whom the [[work]] was prepared is the initial [[owner]] of the [[copyright]] unless there has been a [[written]] [[agreement]] to the contrary signed by both parties.

== Effect on term of copyright protection ==

The [[copyright duration|term]] of [[copyright protection]] of a work made for hire is 95 years from the date of [[publication]] or 120 years from the date of [[created|creation]], whichever expires first. (A [[work]] not made for hire is ordinarily protected by [[copyright]] for the life of the [[author]] plus 70 years.) <ref>For additional information concerning the [[copyright duration|term]] of [[copyright protection]], ''see'' [[U.S. Copyright Office]], [http://www.copyright.gov/circs/circ15a.html|Circular 15a “Duration of Copyright.”]</ref>

== Effect on termination rights ==

[[1976 Copyright Act|Copyright law]] provides that certain grants of the [[exclusive rights|rights]] in a [[work]] that were made by the [[author]] may be terminated 35 to 40 years after the grant was made or after [[publication]], depending on the circumstances. The termination provisions of the law do not apply to works made for hire.

== References ==
<references />

== See also ==

* [[Work Made for Hire and Copyright Corrections Act of 2000]]
[[Category:Copyright]]
[[Category:Legislation]]
[[Category:Legislation-U.S.-Federal]]
[[Category:Legislation-U.S.-Copyright]]
[[Category:Employment]]