Editing Work for hire (section)

==Law in the United States==
The circumstances in which a work is considered a "work made for hire" is determined by the [[United States]] [[Copyright Act of 1976]] as either

{{quote| (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a [[Collective work (US)|collective work]], as a 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 answer material for a test, or 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. (17 U.S.C. § 101)}}

The first situation applies only when the work's creator is an employee, not an independent contractor.<ref name="Circ09">US Copyright Office, [http://www.copyright.gov/circs/circ09.pdf Circular 9: Work-Made-For-Hire Under the 1976 Copyright Act].</ref> The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency,<ref name="Circ09"/> in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employees from independent contractors in the work for hire context, ''[[Community for Creative Non-Violence v. Reid]]'',<ref>Cmty. for Creative Non-Violence v. Reid'', 490 U.S. 730 (1989)</ref> the Court listed some of these factors: <blockquote>
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. ''See'' Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee).
</blockquote>

On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire ''only'' if all of the following conditions are met:
* the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
* the work must be specially ordered or commissioned;
* there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."<ref name="Circ09"/>

In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though not signed, before the work begins. 

According to case law, retroactive contractual designation as a work for hire is not permitted.<ref>Schiller & Schmidt Inc. v. Nordisco Corp., 969 F2d 410 (1992)</ref> Furthermore, a valid work-made-for-hire agreement must be signed by ''both'' parties (the creator of the work and the commissioning party who is to be considered the author). <ref>Schiller & Schmidt Inc. v. Nordisco Corp., 969 F2d 410 (1992)</ref>

When relying on agreements in which creators transfer rights to a hiring party ([[copyright transfer agreement]]), a hiring party often finds that it has only limited scope to alter, update, or transform the work. For example, a motion picture may hire dozens of creators of copyrightable works (e.g., music scores, scripts, sets, sound effects, costumes) any one of which would require repeated agreements with the creators if conditions for showing the film or creating derivatives of it changed. Failing to reach agreement with any one creator could prevent the showing of the film entirely. To avoid this scenario, producers of motion pictures and similar works require that all contributions by non-employees be works made for hire.<ref>{{cite web |url=https://www.fwrv.com/memorializing-relationships-early-pays-off-later-part-2-does-a-film-producer-make-a-mistake-by-not-entering-into-work-for-hire-agreements-with-film-crew-talent-writers-and-other-independent-contrac/ |title=Memorializing Relationships Early Pays Off Later: Does a Film Producer Make a Mistake By Not Entering Into Work For Hire Agreements with Film Crew, Talent, Writers and Other Independent Contractors Whom She Hires? |last=Rosini |first=Neil |date=March 5, 2019 |website=FWRV.com |access-date=September 12, 2022}}</ref>

On the other hand, a work for hire agreement is less desirable for creators than a copyright transfer agreement. Under work for hire, the commissioning party owns all rights from the very start even if the contract is breached, whereas under a transfer of rights, the creator can hold back the rights until all terms of the contract are fulfilled. Holding back the rights can be a forceful tool when it is necessary to compel a commissioning party to fulfill its obligations.

An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright.<ref name="Termination Rights">{{cite web|url=http://www.copyright.gov/docs/203.html|title=U.S. Copyright Office - Termination of Transfers and Licenses Under 17 U.S.C. 203|first=U.S. Copyright Office|last=(www.copyright.gov)|website=www.copyright.gov}}</ref> However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire."<ref name="Circ09"/> These restrictions, in both the work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings. Nonetheless, failure to secure a work-for-hire agreement by commissioning organizations can create difficult situations. One such example is the artist [[Raymond Kaskey]]'s 1985 statue ''[[Portlandia (statue)|Portlandia]]'', an iconic symbol of the city of Portland, Oregon. Unlike most works of public art, Kaskey has put strong prohibitions on the use of images of the statue, located atop the main entrance to the famous [[Portland Building]]. He sued [[Paramount Pictures]] for including shots of the statue in the [[Madonna (entertainer)|Madonna]] motion picture ''[[Body of Evidence (1993 film)|Body of Evidence]]''. As a result, it is nearly impossible to film portions of one of downtown Portland's most vibrant neighborhoods, and the city has lost out on the potential to create merchandise and souvenirs from one of its most iconic landmarks.<ref>{{cite news
|last=Bancud |first=Michaela
|title=Your best shot at a perfectly sculpted figure
|url=http://portlandtribune.com/component/content/article?id=119564|archive-url=https://web.archive.org/web/20160427180804/http://portlandtribune.com/component/content/article?id=119564|url-status=dead|archive-date=April 27, 2016 <!--http://www.portlandtribune.com/news/story.php?story_id=18358-->
|newspaper=[[Portland Tribune]]
|date=May 27, 2003
|access-date=2014-09-12
}}</ref>

An author can grant his or her copyright (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).<ref name="Termination Rights"/>

The application of the law to materials such as lectures, textbooks, and academic articles produced by teachers is somewhat unclear. The near-universal practice in education has traditionally been to act on the assumption that they were ''not'' work for hire.<ref>{{cite web|url=http://www.bc.edu/bc_org/avp/law/lwsch/journals/bclawr/41_3/02_TXT.htm |title=Who Owns the Copyright to Faculty-Created Web Sites?: The Work-For-Hire Doctrine's Applicability Tto Internet Resources Created for Distance Learning and Traditional Classroom Courses|access-date=April 28, 2009 |url-status=dead |archive-url=https://web.archive.org/web/20081212020422/http://www.bc.edu/bc_org/avp/law/lwsch/journals/bclawr/41_3/02_TXT.htm |archive-date=December 12, 2008 }}</ref>

Where [[Startup company|startup technology companies]] are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding.<ref name="startup-wfh">{{cite web |url=http://apps.americanbar.org/buslaw/blt/content/2011/04/keepingcurrent-ip.shtml |title=The 'Work for Hire' Doctrine and Start-up Technology Companies |first=Elaine D. |last=Ziff |date=April 12, 2011 |access-date=March 9, 2015 |archive-url=https://web.archive.org/web/20170705211828/http://apps.americanbar.org/buslaw/blt/content/2011/04/keepingcurrent-ip.shtml | archive-date=July 5, 2017}}</ref>

===Amendment covering sound recordings===
In 1999, a work for hire related amendment was inserted into the Satellite Home Viewer Improvement Act of 1999.  It specified that sound recordings from musical artists could be categorized as works for hire from the recording studios.<ref>{{cite web |url=http://www.copyright.gov/docs/regstat52500.html <!--
Statement of Marybeth Peters
The Register of Copyrights
before the
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
United States House of Representatives
106th Congress, 2nd Session-->
|title=Sound Recordings as Works Made for Hire
|date=May 25, 2000 |access-date=March 9, 2015}}</ref>

===Employer–employee relationship under agency law===
If a work is created by an employee, part 1 of the copyright code's definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in
''CCNV v. Reid'' identified certain factors that characterize an "employer-employee" relationship as defined by agency law:

# Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer's location, and provides equipment or other means to create work)
# Control by employer over the employee (e.g., the employer controls the employee's schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee's assistants)
# Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee's payment)

In ''Woods v. Resnick'' (2010), the [[United States District Court for the Western District of Wisconsin|Western District of Wisconsin]] found that a business owner is neither an employee nor an independent contractor for copyright purposes. Since "an owner has an inherent right to control the business", the owner cannot be considered an agent, let alone an employee, so the work for hire doctrine does not apply to them.<ref name="startup-wfh"/><ref name="Woods v. Resnick">{{cite court |litigants=Woods v. Resnick |vol=725 |reporter=F. Supp. 2d |opinion=809 |pinpoint=23 |court=W.D. Wis. |date=2010 |url=https://casetext.com/case/woods-v-resnick-2 |quote=In contrast, as a co-owner of the company, Woods does not have an agency relationship with F I Source. Unlike an employee or independent contractor, an owner has an inherent right to control the business.}}</ref>