Question and Answer #4: When Is a Work a Work for Hire?

by John Aquino on 09/21/12

Question: You’ve mentioned “work for hire” in passing. Can you elaborate? When I write something for someone, is that automatically a work for hire?

Answer: Section 101 of Copyright Act defines a "work made for hire" as:Section 101 of Copyright Act defines a "work made for hire" as:

(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; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; a sound recording.”

A work, then, that is made as part of an individual’s employment or that is one for which the rights are contractually assigned to the commissioner of the work is a “work made for hire.” The “author” of a “work made for hire” for the purposes of the copyright law is the employer or the one who contracts for creation of the work.

Just as Congress did not define “fair use” when it published the Copyright Act of 1976, it did not define “employee,” and the result is that the situation concerning the copyright of works for freelancers is often left unclear. So you have to look to case law for guidance.

In the 1989 U.S. Supreme Court case Community for Creative Non-Violence v. Reid, 109 S.Ct. 2166 (1989), Reid created a sculpture for the CCNV in accordance with CCNV’s concept and general design ideas, but the parties did not discuss copyright ownership in advance. Reid and CCNV both registered the copyright, with CCNV claiming that the sculpture was a “work made for hire.” The Supreme Court affirmed the decision of the Court of Appeals for the District of Columbia, which had reversed the trial court, noting that the CCNV did not claim that the sculpture was a specially commissioned work under subsection (2) and there was no written agreement about who owned the copyright. The CCNV argued that Reid should be considered an “employee” because it had retained the right to control the product. But the Court held that Reid was not an employee—he had worked in his own studio, used his own tools, had control of his own working hours, and was not treated as an employee for the purposes of benefits, social security, and other employee benefits.

But, in cases where the author is clearly an employee or where the publisher or contractor specifies that the work is a work for hire, the creator of the work does not hold the copyright. This can be especially vexing for those working in a collaborative medium when an individual makes a pivotal contribution. In motion pictures, for example, unless it is otherwise provided for contractually, the studio or production company owns the copyright.

This issue came up in the 1980’s when the technology was developed to colorize black-and-white films. John Huston, a noted director, found that the Turner Communications, which had purchased the M-G-M film library, which included his 1950 film The Asphalt Jungle, intended to colorize Jungle on the assumption that this would make it more accessible to new generations of movie goers. Huston responded that, while it was true that the majority of movies produced in the 1940’s and 1950’s had been made in black-and-white, he had deliberately chosen to make the film in black-and-white, thinking that the lack of color enhanced the gritty subject matter of his crime film. Huston, however, had been an employee on the film. The work was a work-for-hire, and he had absolutely no say in the matter of colorization because he did not own the copyright.

But Huston found salvation in Europe where many countries recognize the personal right of each creator of a work, and call this right droit moral or moral right. The right includes the right to be known as the author, the right to keep others from making changes that distort the author’s work, and the right not to be listed as the author if the work has been distorted. In the Asphalt Jungle case, the Huston Estate—Houston died in 1986--sued in France in 1988 and the court decided, on the basis of Houston’s droit moral, that Turner could not broadcast the colorized version. The French Court of Appeals affirmed the decision in 1994 and fined Turner for broadcasting its version. What worked in France would work in other European countries, and so Turner gave up his plan to colorize Jungle and after a while appeared to have lost interest in the colorization process all together.

There have been attempts to establish a droit moral in the some U.S. cases—see Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir. 1976), which concerned ABC Television severely editing episodes of the British Broadcasting Corporation series Monty Python’s Flying Circus to add commercials. Terry Gilliam, who went on to direct such films as Time Bandits and The Fisher King, along with the other Monty Python creators, sued,  and the U.S. Court of Appeals for the Second Circuit allowed that copyright implied a right of the author not to have the author’s work mutilated. But as of this writing the effect of these cases is uncertain at best.

In addition to the issue of “work for hire,” situations where it is uncertain whether or not the author is an employee or where the issue of copyright for a contracted work was left unclear can raise issues joint authorship—if the employer or others contributed to the work and there was the requisite intent to establish a joint authorship, or collective work in which the author at least contributed a portion.

If the question is whether or not the work was a work-made-for-hire, there is an initial assumption that the creator of the work is the author and the burden is on the employer or contractor to prove that there was an agreement concerning copyright or that the author was an “employee.” If, however, the employer/contractor or others contributed to the work, then the author is not the sole author and is, at best, a joint author and must establish the intent to create a joint authorship specifically for the work in question. In joint authorship issues, the burden shifts to the author and the advantage, usually, to the employer or contractor.

The best way for an author to avoid these issues is to retain sole copyright or, if that is not possible, establish contractually that it is a joint authorship situation or that, while the work in question is a work-for-hire that any changes, except minor editorial ones, must be approved by the author.

Copyright 2012 by John T. Aquino. This article is intended for eduicational purposes only and does not constitute a legal opinion.v