What "Work for Hire" Means and How to Prove It

Copyright laws protect the rights of the creator of a copyrightable work. Once the work is set in a tangible form, it belongs to the person who created it. All rights go the author who can claim copyright. However, there is an exception to this doctrine when the subject for registration is a work that was specifically ordered and paid for. It is known as “work for hire.” The owner of the work is the person who ordered its creation (the commissioning party of the work is deemed to be the author). In an organization it means that an employer owns the copyright to the works of its employees, which was created in a regular course of business. The legal definition of "work for hire" has two parts to it. The first: it is a work made by an employee (independent contractor) within his/her employment; and the second: its is a work that was specially requested to be created. For example, a cartographer creates maps. If he/she works for the company, receives a salary, or was retained as an independent contractor to create a particular set of maps, those maps will be owned by the company that the cartographer works for.

If there is a dispute between the parties regarding the ownership of a particular work, it may be difficult to prove which elements exactly should be included in the “work for hire” and which ones were created with a person’ s own time and will. For example, let’s say a work is created by an employee. Logically, its owner should be the employer. However, the work has to be within the scope of the employment. What constituted the scope of a particular employment may be interpreted differently by the parties. When determining whether the work was created in the course of someone’ s employment, the courts address such things as the place of creation (an office or an employee’ s personal space), what tools were used (to whom the tools belonged), whether the work was in the line of the company’ s business or not, and many other factors. Litigation is a notoriously long and expensive procedure. In order to avoid it, the parties should always execute a written agreement, which would cover not only present works as they may exist in the moment, but also all future creations. It is important to state in the agreement that copyright will be assigned from an employee to an employer automatically without the need to execute any additional agreements in the future. It can be either a stand-alone agreement or included as similar clauses in the employment agreement, among other things.

If a work is summoned from an independent contractor, there will not be an employment agreement. Therefore, it is extremely important to have a well-written intellectual property assignment agreement, which prevents a contractor from changing his/her mind in regards to the assignment once the work is created, and also from competing with the commissioning party in the future. A well-drafted, thorough agreement takes away the need to prove all the above elements of "work for hire" and uncertain about the future use. The agreement should clearly state the nature and purpose of parties’ relationship, the scope, time duration, and any and all terms and conditions concerning the assignment of the work as required by law.

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