“Works for Hire” The Facts You Need To Know

Control can be an issue for some employers. How to retain control over a project? When to give up control? How much control should be in the hands of the freelancer that was hired to complete a project? Also, there is the issue of who retains control over a work once it has been completed? “Is it the employer’s work or the independent contractors?” In an employer-employee relationship the answer is clear cut, it is the employers. However if the relationship is one of employer-independent contractor, then the explanation of who owns what, grows more complicated.

Ever heard of the old adage, “If you break it, you bought it.” In a round about way this is the case when it comes to issues of ownership between employer and independent contractor. Basically, “Whoever orders or commissions a job for use as a contribution to a collective work, owns it,” or says Copyright Act of 1976, Title 17, Chapter 1, Section 101. In addition, an independent contractor must sign a form agreeing to transfer all rights to the employer. If the independent contractor fails to do so, employers might find themselves all out of options.

“Made for hire” automatically transfers ownership rights over to the employer. For example, an employer hires a professional freelancer to write several reviews for their website. Although the freelancer created the reviews as part of their job and at the employer’s requests, all ownership rights would be the employers.

There are instances where “Whoever orders or commissions for use, as a contribution to a collective work, owns it”, is declared null and void. Lets call those instances, “not made for hire.” For example, You are an employer and you hire a programmer to create a computer program. Can the employer retain ownership rights over the computer program, after all the programmer was commissioned to specifically create it, and use it for their website? The answer is , “No”. Copyright law prohibits logo designs, illustrations, ecommerce websites and computer programs completed by independent contractors to be seen as works “made for hire”. In those situations, an employer can ask that all ownership rights be transferred over to them via a written contract. If using the services of a freelance website, that contract should be part of a Project Agreement - a detailed document between employer and freelancer.

As with human beings, copyright protection is finite. The lifespan of works ‘made for hire’ are considerable, not quite that of the people who populate the Bible, but close to it. 95 years from the date of publication, 120 years from the date of creation or whichever expires first. Works that do not fall under the heading of ‘works made for hire’ life span is less, 70 years.

In conclusion, the question of copyright ownerships never completely goes away. What qualifies as works ‘made for hire’ and what does not, is the first step in knowing what type of action that needs to be taken in any Copyright dispute.