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Statutory Definition of "Work Made for Hire" Annotated and Explained

(The previous, differently defined term used, "Work for Hire" no longer proper since 1978)

This document attempts to explain some of the aspects of the currently U.S. Work Made for Hire statute. Certain terms in the statute language are highlighted and further information and explanation can be read from the pop ups and footnotes associated with them.

17 USC 101. Definitions.

A "work made for hire" is --

  1. a work prepared by an employee Defined by courts as akin to meeting the IRS's definitions of employee which is broader in scope than just common employee/employer relationships. There are multi-factor tests which consider such things as control, direction and support of the work and activity, its continuing nature as well as other factors. Employee status to be determined by the courts. 1 within the scope of his or her employment The highlighted element of this clause, within the scope, is key in that even if a work is performed by an employee, even using equipment or materials provided by the employer, if the scope of work the employee is expected to produce does not include the type or instance of work the employee creates, then the employee alone is the author for copyright purposes. 2;

    OR

  2. a work specifically ordered or commissioned These are the only nine categories that can be considered as work made for hire outside of the employee relationship in (1) in what is referred to as an Independent Contractor relationship. Even if the work falls into one of these nine categories, it must follow the other formalities stipulated in the clause, namely it must be specifically ordered or commissioned, which most courts require to be in a separate, negotiated contractual arrangement. 3 for use if the parties expressly agree in a written instrument signed by them It must be expressly agreed and signed to in writing by both parties that the work is to be a work made for hire. Most courts require the term “work made for hire” to be contained within the written contract to establish the relationship. 9 that the work shall be considered a work made for hire.

Any failure in fitting into one of these limited situations means that the original creator will be the author with regard to copyright purposes and the “employer” will have no authorship rights.

1 - Defined by courts as akin to meeting the IRS's definitions of employee which is broader in scope than just common employee/employer relationships. There are multi-factor tests which consider such things as control, direction and support of the work and activity, its continuing nature as well as other factors. Employee status to be determined by the courts.

2 - The highlighted element of this clause, within the scope, is key in that even if a work is performed by an employee, even using equipment or materials provided by the employer, if the scope of work the employee is expected to produce does not include the type or instance of work the employee creates, then the employee alone is the author for copyright purposes.

3 - These are the only nine categories that can be considered as work made for hire outside of the employee relationship in (1) in what is referred to as an Independent Contractor relationship. Even if the work falls into one of these nine categories, it must follow the other formalities stipulated in the clause, namely it must be specifically ordered or commissioned, which most courts require to be in a separate, negotiated contractual arrangement.

4 - A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

5 - "Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

6 - a work prepared for 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, appendices, and indexes.

7 -A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

8 -A literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

9 - It must be expressly agreed and signed to in writing by both parties that the work is to be a work made for hire. Most courts require the term “work made for hire” to be contained within the written contract to establish the relationship.