Work Made for Hire
A work made for hire is a work in which the copyright vests in the employer or commissioning party rather than the individual creator. Under 17 U.S.C. § 101, a work is made for hire in two circumstances: (1) a work prepared by an employee within the scope of employment; or (2) a work specially ordered or commissioned for use in one of nine enumerated categories — including contributions to collective works, parts of motion pictures, and compilations — if the parties expressly agree in a signed written instrument. The work made for hire doctrine is one of the most consequential — and most contested — concepts in entertainment law.
Studios, labels, and publishers routinely structure agreements to make creative work product works made for hire, which eliminates the creator's copyright termination rights under 17 U.S.C. § 203. The recording industry's decades-long dispute over whether sound recordings qualify as works made for hire — which would prevent artists from recapturing masters after 35 years — is one of the highest-stakes IP disputes in entertainment. For creators, the work made for hire question determines whether they retain any long-term rights in their work.
Defines the two categories of works made for hire: employee works within scope of employment, and nine categories of specially commissioned works with signed written agreement.
Termination rights — grants authors the non-waivable right to terminate copyright transfers and licenses granted after January 1, 1978, during a five-year window beginning 35 years after the grant. Works made for hire are excluded from this right.
The nine categories of specially commissioned works that can qualify as works made for hire: contribution to collective work, part of motion picture or audiovisual work, translation, supplementary work, compilation, instructional text, test, answer material for a test, atlas.
Whether a sculptor hired as an independent contractor to create a nativity scene produced a work made for hire, entitling the commissioning organization to copyright ownership.
The Supreme Court held that the employee vs. independent contractor distinction for work made for hire is determined by agency law factors — not just contract labels. Established the multi-factor test (hiring party's control, skill required, tools supplied, location of work, etc.) used to determine employee status for copyright purposes.
Whether comic book creator Joe Simon's creation of Captain America was a work made for hire that would prevent him from exercising termination rights.
The Second Circuit held that termination rights cannot be contracted away — a creator cannot waive termination rights by agreeing that a work was made for hire when it was not. Critically protects creators' non-waivable termination rights against contractual manipulation.
The work made for hire doctrine defines long-term IP ownership in entertainment. Studios that successfully characterize all production output as work made for hire own their IP indefinitely. Creators who can establish that their work was not work made for hire retain termination rights — the right to recapture copyright 35 years after assignment. The recording industry is currently in the heart of the termination window for 1980s and 1990s recordings, generating significant litigation over whether those recordings qualify as works made for hire under the nine-category test.
Never advise a client that something is a work made for hire based solely on contract language — confirm that the work actually meets the statutory definition.
For commissioned works, check whether the work falls in one of the nine categories — the category 'part of a motion picture or audiovisual work' covers many film and television contributions, but not standalone songs or scripts.
For recording artists approaching their 35-year termination window, audit which recordings were actually made as works made for hire vs. simply labeled as such — the label in the contract is not determinative.
Independent contractor status under agency law factors (not the work made for hire label) determines whether an employee's work is automatically owned by the employer.
Document the circumstances of creation for all significant works — evidence of hiring party control, tools supplied, and work location will be essential in any future work made for hire dispute.
Work made for hire requires either an employment relationship (scope of employment) or a specially commissioned work in one of nine statutory categories with a signed written agreement.
Contract labels calling something 'work made for hire' are not determinative — courts look at the actual circumstances of creation.
Works made for hire are not subject to copyright termination — eliminating the creator's right to recapture copyright after 35 years.
The nine categories for specially commissioned works are exclusive — a commissioned work that doesn't fit any category cannot be work made for hire regardless of what the contract says.
Sound recordings are not expressly listed in the nine categories — making the recording industry's work for hire claims for pre-1978 recordings legally contested.
No — the parties cannot contractually designate a work as made for hire if it doesn't meet the statutory definition. Courts look at substance, not labels. A commissioned work that doesn't fit one of the nine statutory categories cannot be made for hire regardless of contract language.
Typically yes if written by an employee of a studio within the scope of employment. If written by a freelance writer under a signed written agreement, a screenplay can qualify as work made for hire as a 'contribution to a motion picture' — one of the nine statutory categories.
No — termination rights under 17 U.S.C. § 203 are non-waivable. A creator cannot contractually agree to give up their right to terminate a copyright transfer or license after 35 years.