CircularWorks

Made for

Hire

under the

1976

Copyright

Act

9 United States Copyright Office

INTRODUCTION

Under the 1976 Copyright Act as amended (title 17 of

the United States Code), a work is protected by copyright

from the time it is created in a fixed form. In other words,

when a work is written down or otherwise set into tangible

form, the copyright immediately becomes the property of

the author who created it. Only the author or those deriving their rights from the author can rightfully claim copyright.

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.

To understand the complex concept of a work made for

hire, it is necessary to refer not only to the statutory definition but also to its interpretation in cases decided by

courts. 9
2

STATUTORY DEFINITION

Section 101 of the copyright law 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, 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a

work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a

publication as a secondary adjunct to a work by another

author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting

in the use of the other work, such as forewords,

afterwords, pictorial illustrations, maps, charts, tables,

editorial notes, musical arrangements, answer material

for tests, bibliographies, appendixes, and indexes; and an

“instructional text” is a literary, pictorial, or graphic work

prepared for publication and with the purpose of use in

systematic instructional activities.

DETERMINING WHETHER A WORK IS

MADE FOR HIRE

Whether or not a particular work is made for hire is determined by the relationship between the parties. This determination may be difficult, because the statutory definition of a work made for hire is complex and not always

easily applied. That definition was the focus of a 1989

Supreme Court decision (Community for Creative NonViolence v. Reid, 490 U.S. 730 [1989]). The court held

that 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, part 1 of the statutory definition applies, and generally the work would be

considered a work made for hire. IMPORTANT: The term

“employee” here is not really the same as the common

understanding of the term; for copyright purposes, it

means an employee under the general common law of

agency. This is explained in further detail below. Please

read about this at “Employer-Employee Relationship Under Agency Law.”

If a work is created by an independent contractor (that

is, someone who is not an employee under the general

common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory

definition applies. 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 listed in

part 2 of the definition and (2) there is a written agreement

between the parties specifying that the work is a work

made for hire.

Employer-Employee Relationship Under Agency Law

If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To

help determine who is an employee, the Supreme Court in

CCNV v. Reid identified certain factors that characterize an

“employer-employee” relationship as defined by agency

law:

1) Control by the employer over the work (e.g., the

employer may determine how the work is done, has the

work done at the employer’s location, and provides equipment or other means to create work)

2) Control by employer over the employee (e.g., the

employer controls the employee’s schedule in creating

work, has the right to have the employee perform other

assignments, determines the method of payment, and/or

has the right to hire the employee’s assistants)

3) Status and conduct of employer (e.g., the employer is in business to produce such works, provides the

employee with benefits, and/or withholds tax from the

employee’s payment)

These factors are not exhaustive. The court left unclear

which of these factors must be present to establish the

employment relationship under the work for hire definition, but held that supervision or control over creation of

the work alone is not controlling.

All or most of these factors characterize a regular,

salaried employment relationship, and it is clear that a

work created within the scope of such employment is a

work made for hire (unless the parties involved agree

otherwise).

Examples of works for hire created in an employment

relationship are:

• A software program created within the scope of his

or her duties by a staff programmer for Creative

Computer Corporation.

• A newspaper article written by a staff journalist for

publication in the newspaper that employs him.
3

• A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.

• A sound recording created by the salaried staff

engineers of ABC Record Company.

The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work

created within the scope of that employment would be a

work made for hire. However, since there is no precise

standard for determining whether or not a work is made for

hire under the first part of the definition, consultation with

an attorney for legal advice may be advisable.

WHO IS THE AUTHOR OF A WORK MADE FOR HIRE?

If a work is a work made for hire, the employer or other

person for whom the work was prepared is the author and

should be named as the author in Space 2 of the application for copyright registration. The box marked “workmade-for-hire” should be checked “yes.”

WHO IS THE OWNER OF THE COPYRIGHT IN A

WORK MADE FOR HIRE?

If a work is a work made for hire, the employer or other

person for whom the work was prepared is the initial

owner of the copyright unless there has been a written

agreement to the contrary signed by both parties.

EFFECT ON TERM OF COPYRIGHT PROTECTION

The term of copyright protection of a work made for hire

is 95 years from the date of publication or 120 years from

the date of creation, whichever expires first. (A work not

made for hire is ordinarily protected by copyright for the

life of the author plus 70 years.) For additional information

concerning the terms of copyright protection, request

Circular 15a, “Duration of Copyright.”

EFFECT ON TERMINATION RIGHTS

The copyright code provides that certain grants of the

rights in a work that were made by the author may be terminated 35 to 40 years after the grant was made or after

publication, depending on the circumstances. The termination provisions of the law do not apply to works made

for hire.

FOR FURTHER INFORMATION

Information via the Internet: Circulars, announcements, regulations, other related materials, and all copyright application forms are available via the Internet. You

may access these on the Copyright Office homepage at

www.loc.gov/copyright.

Information by fax: Circulars and other information

(but not application forms) are available from Fax-onDemand at (202) 707-2600.

Information by telephone: For information about

copyright, call the Public Information Office at (202) 707-

3000. The TTY number is (202) 707-6737. Information

specialists are on duty in the Public Information Office

from 8:30 a.m. to 5:00 p.m., eastern time, Monday through

Friday, except federal holidays. Recorded information is

available 24 hours a day. Or, if you know which application

forms and circulars you want, request them 24 hours a

day from the Forms and Publications Hotline at (202) 707-

9100. Leave a recorded message.

Information by regular mail: Write to:

Library of Congress

Copyright Office

Public Information Office

101 Independence Avenue, S.E.

Washington, D.C. 20559-6000
Library of Congress • Copyright Office • 101 Independence Avenue, S.E. • Washington, D.C. 20559-6000

www.loc.gov/copyright

REV: Dec 2000—30,000

WEB REV: Dec 2000

PRINTED ON RECYCLED PAPER ✩U.S. GOVERNMENT PRINTING OFFICE: 2001-472-559/20,031

 UNITED STATES COPYRIGHT OFFICE 

THE LIBRARY OF CONGRESS