What are the two methods by which a hiring party acquires a work made for hire?
2007/// Filed in: Copyright Law
Under the Copyright Act of 1976 17 U.S.C. 101 there are situations where the ownership of the copyright does not belong to the person responsible for creating the work (i.e. the creator) but to the party commissioning the work (e.g. the employer). This is known as the "work-made-for-hire doctrine."
In order for a hiring party to acquire the copyrights it must meet either of the following two requirements: 1) the work was prepared by an employee within the scope of his or her employment, and/or 2) the work was specially ordered or commissioned for use as a contribution within the following categories: a collective work, as 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 answers material for a test, or as an atlas. Additionally, the parties involved expressly agree in writing that the work shall be considered a work made for hire.
While it is relatively simple to apply these two requirements in certain situations (e.g. a waiter that writes a movie script would be an example of a work that falls outside the scope of employment), these two requirements can be problematic. In certain situations it is difficult to determine whether the work was created within the scope of an employer-employee relationship. For instance, a university professor may create instructional materials and seek copyright protection for himself. The employer university could claim that the creation of instructional materials falls within the scope of the employment and seek to obtain ownership of the materials. Similarly, an employed software programmer could create a computer program and seek copyright protection for his creation claiming that he created the program on "his own time" and using his personal tools (e.g. personal computer and software). In both examples it would be difficult to determine who is the legal owner of the copyright. In these situations where an employee desires to retain control of specific works that may be considered to be created within the scope of employment, he should execute an agreement with the employer confirming the arrangement.
References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976
In order for a hiring party to acquire the copyrights it must meet either of the following two requirements: 1) the work was prepared by an employee within the scope of his or her employment, and/or 2) the work was specially ordered or commissioned for use as a contribution within the following categories: a collective work, as 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 answers material for a test, or as an atlas. Additionally, the parties involved expressly agree in writing that the work shall be considered a work made for hire.
While it is relatively simple to apply these two requirements in certain situations (e.g. a waiter that writes a movie script would be an example of a work that falls outside the scope of employment), these two requirements can be problematic. In certain situations it is difficult to determine whether the work was created within the scope of an employer-employee relationship. For instance, a university professor may create instructional materials and seek copyright protection for himself. The employer university could claim that the creation of instructional materials falls within the scope of the employment and seek to obtain ownership of the materials. Similarly, an employed software programmer could create a computer program and seek copyright protection for his creation claiming that he created the program on "his own time" and using his personal tools (e.g. personal computer and software). In both examples it would be difficult to determine who is the legal owner of the copyright. In these situations where an employee desires to retain control of specific works that may be considered to be created within the scope of employment, he should execute an agreement with the employer confirming the arrangement.
References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976