A lot of companies require employees and contractors to sign work-made-for-hire agreements. What is work-made-for-hire?

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Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: the copyright law defines a category of works called “works made for hire.” 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.

Whether or not a particular work is made for hire is determined by the relationship between the parties. In order 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 a work is created by an employee, generally the work would be considered a work made for hire.

If a work is created by an independent contractor, then the work is a specially ordered or commissioned work. 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 (i.e. contribution to a collective work, as a part of a motion picture or other 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) and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

So if you have an employee or independent contractor who is doing work for you that may have copyrightable material, you not only want to state in your agreement that the work is a work-made-for-hire but you want to put in an additional provisions that the employee or independent contractor assigns all right, title and interest over to you.

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

admin @ August 19, 2009