July 8th, 2015
Copyrights Automatically Belong to the Author of a Work from the Point of its Creation.
“Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving works from the author can rightfully claim copyright.” [Excerpt from US Copyrights Office Publication/Library of Congress].
Except When the “Works Made for Hire” Doctrine Applies.
However, the “works made for hire” doctrine carves out an exception to this rule. What is a “work made for hire”?
When employees create a work in the course of their employment, that work, and all rights including authorship rights, belong to the employer (unless there is an agreement to the contrary).
The same principle can apply to independent contractors, in some, but not all circumstances. If the commissioned work of the contractor falls within one of nine categories identified in Section 101 of the Copyright Act (title 17 of the U.S. Code), and if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, then it will be covered by this doctrine.
The nine categories that apply to an independent contractor’s work are as follows: work specially ordered or commissioned for use as a 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. Clearly, the application of this doctrine to employees is much broader, whereas the application of this doctrine to independent contractors requires that it fall within one of these categories and be covered by a written agreement specifying that the work is made for hire.
Of course the application of the law to a specific scenario is not always this straightforward. The analysis of whether the “works made for hire” doctrine applies can be complex and requires looking at additional interpretations of the law via decisions from the U.S. Courts, starting with the Supreme Court (which defines employee in the context of works made for hire not as we commonly understand the term employee, but instead under concepts of agency law).
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