eBook Ch. 4
Work-for-Hire Agreements:
Who Owns Creative Property?

ebook Chapter Cover Image "Work-for-Hire Agreements: Who Owns Creative Property?"

Ch. 4: Work-for-Hire Agreements: Who Owns Creative Property?

As a media professional, you deliver creative work to your clients — whether it's by editing films, doing graphic design, or writing an ad campaign. But this often raises a legal issue — who owns the work? Does it belong to you or the client? Or is it owned by the graphic designer you hired as a contractor?

Work-for-hire law (also known as work-made-for-hire law) usually assigns ownership of a creative work to the employer. A media or advertising agency will probably own the copyright of the work its employees produce. Contractors and freelancers, though, may be different, so be sure to clarify who owns any work they produce for your business.

While work for hire assigns copyright, it's standard practice to go an extra step and ensure that all employment agreements and contracts spell out who owns creative work.

What Work-for-Hire Agreements Mean for Advertising and Media Firms

Work-for-hire copyright laws may be relevant in a number of situations for media professionals. Here are a couple of examples:

  • As the employer, you own the copyright to work your staff creates. But your clients require you to assign ownership to them in your services agreement.
  • You hire employees, freelancers, and independent contractors and include language in your employment agreements to make it clear that your company owns the work they create for you.

Let's focus on independent contractors and work-for-hire law. In some states (California, for example), for a work-for-hire copyright to be given to a company, the work has to be performed by an employee (not an independent contractor).

For this reason, it's always smart to include a clause in your employment contracts that assigns the ownership of the work to your company. In its Works Made for Hire guide [PDF] , the US Copyright Office emphasizes that your independent contractor agreements should all have a clause that stipulates you own the copyright to any work they create on the job.

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a "work made for hire" in two parts:

Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a "work made for hire" in two parts:

  1. a work prepared by an employee within the scope of his or her employment
  2. or
  3. a work specially ordered or commissioned for use
    1. as a contribution to a collective work,
    2. as a part of a motion picture or other audiovisual work,
    3. as a translation,
    4. as a supplementary work,
    5. as a compilation,
    6. as an instructional text,
    7. as a test,
    8. as answer material for a test, or
    9. 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.

Next: Ch. 5: Fair Use and Media Liability

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