Next in an occasional series on copyright: work made for hire
The readers are on opposite sides of the bargaining table, but they are both confused by the same thing: the way copyright law works with a report from a professional genealogist.
“I just received the report from the genealogist I hired,” writes reader Bill D. of Colorado. “Every page says it’s copyrighted by the genealogist. But I bought and paid for that research. I don’t understand how the genealogist can tell me he owns the copyright on the report. Isn’t this a work for hire where I get the copyright?”
And reader-and-professional-genealogist Debbie H. poses the question from the other side: “A client just questioned the copyright status of my report to him. He asks ‘I have a small question regarding copyright. It is my understanding from the copyright office that a “work made for hire” belongs to the employer or person actually paying for the work.’ How should I respond to him?”
The work-for-hire doctrine is a little confusing, so let’s go over the basics.
In the ordinary case, under U.S. law, a copyright belongs to the creator of the work — the artist, the sculptor, the author of the book or the report. It comes into being automatically, the minute the work is created: “Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.”1 It doesn’t have to be registered in the Copyright Office2 and it doesn’t have to have a copyright notice on it.3
But there’s an exception to the creator-as-copyright-owner rule when the work is what’s called a work made for hire:
Although the general rule is that the person who creates the work is its author, there is an exception to that principle. The exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author. 4
That sure makes it sound like that genealogy report is a work made for hire, doesn’t it? But, as usual, the devil’s in the details, and there’s a key limitation that’s only hinted at in the phrase “specially ordered or commissioned in certain specified circumstances.”
Those specified circumstances come from the statutory definition of a work made for hire in 17 U.S.C. §101. That definition has two parts, one that’s fairly easy — and one that’s not so easy.
The easy part of the definition is that “a work prepared by an employee within the scope of his or her employment” is a work made for hire.5
So if you’re a regular employee, and you have to take pictures every day as part of your job responsibilities, it’s a work made for hire and the company that pays you owns the copyright to those photos. But your status as an employee doesn’t affect, say, your ownership of the copyright on the photos you take with your own camera at night or on weekends.6
The harder part of the definition includes as a work made for hire some types of work “specially ordered or commissioned for use”:
• as a contribution to a 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.7
And there’s a long definition of just what’s meant by a supplementary work or instructional text.8
Figuring out if the work falls into one of those categories can be confusing. If I hire someone to do some research and I’m going to include it in a book I’m writing, is that a contribution to a collective work? Is it a supplementary work?
You might spend a lot of time going over the definitions. Or you might go to that one other minor little matter that’s part of those “certain specified circumstances” that have to be there to make it a work made for hire.
You see, the statutory definition doesn’t end after listing the types of works that might be included. It adds one more proviso. The work is a work made for hire only “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”9
In plain English: you have to have a written contract, signed by the genealogist and by the client, that says it’s a work made for hire. Without that, the copyright belongs to the genealogist, not the client.10
In both Bill’s case and Debbie’s case, there wasn’t any contract provision mentioning copyright at all. That by itself means the work is not a work made for hire.
Bottom line: it isn’t a work made for hire unless there’s a contract that says so.
- U.S. Copyright Office, Circular 1: Copyright Basics, PDF version at p. 2 (http://www.copyright.gov : accessed 19 Nov 2013). ↩
- Ibid., PDF at p. 3. ↩
- Ibid., PDF at p. 4. ↩
- “What is a work made for hire?,” Frequently Asked Questions: Definitions, U.S. Copyright Office (http://www.copyright.gov : accessed 19 Nov 2013). ↩
- 17 U.S.C. 101, “work made for hire.” ↩
- See generally “Works Made for Hire,” Keep Your Copyrights, Columbia Law School (http://web.law.columbia.edu/keep-your-copyrights : accessed 19 Nov 2013). ↩
- 17 U.S.C. §101, “work made for hire.” ↩
- “For the purpose of the foregoing sentence, a ‘supplementary work’ is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ‘instructional text’ is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.” Ibid. ↩
- 17 U.S.C. §101, “work made for hire.” ↩
- See generally U.S. Copyright Office, Circular 9: Works Made for Hire, PDF version at p. 2 (http://www.copyright.gov : accessed 19 Nov 2013). ↩