Copyright laws were enacted to protect owners of creative works from others claiming or using a work as their own. A work is protected from the time it is created in a fixed form. If a creator produces a work, he is generally the owner of the copyright. However, if the creator has been commissioned to create a work for another individual or an organization or is employed to produce or create some type of work, he may not own the copyright to the work under the “works made for hire” doctrine.

The works made for hire doctrine applies when: (1) the creator is an employee who created the work within the scope of his employment, or (2) he is an independent contractor and the client specifically commissioned his work for a project. 

Once a work is considered one made for hire, the authorship and copyright ownership belong to the employer or the person or entity who commissioned the work of the independent contractor. 

Employee Creating Work Within the Scope of Employment 

Whether a creator produces work within the scope of his employment determines if he is considered an employee. The Supreme Court provided factors to consider when determining whether an employee-employer relationship exists. In Community for Creative Non-Violence v. Reid, the Court said that the common law of agency principles should apply to determine whether a creator of a work is an employee for purposes of the works made for hire doctrine. The Court stated that a creator is an employee where the hiring party has control over both the work and the employee, and the creator holds the status of an employee. The status of a creator as an employee can be shown where the employer provides employee benefits and withholds taxes from payment. 

When a work is considered a “work-made-for-hire,” the employer or client for whom the work was produced is considered the author and owns the copyright absent some express agreement in their contract stating otherwise. A knowledgeable attorney can help guide you through questions you may have about copyright ownership within the scope of employment.

Independent Contractor Creating Work Specifically Commissioned by a Client

Where the creator is an independent contractor, the work created must be commissioned for the exclusive use of the client for the works made for hire doctrine to apply. However, this is limited to only certain types of works. The works made for hire doctrine will apply where an independent contractor’s work was specifically commissioned by a client for use as: 

• A contribution to a collective work 
• A supplementary work (for example, illustrations that will accompany another author’s book)
• A part of a film or other audiovisual work 
• A translation
• A compilation
• An instructional text
• A test or answer materials for a test
• An atlas 

Additionally, the independent contractor and the client must have a contract expressly stating that the work will be considered as a work made for hire and signed by both parties.