Work Made For Hire

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Work Made For Hire

Work made for hire refers all work created by an employee while working within the scope of his employment or a work commissioned to an author under contract. Under work for hire rule, the author and copyright owner of a work is considered to be the person who pays for the work and not the person who creates it. The reasoning behind this rule is that a business that authorizes and pays for a work owns the rights to the work. There are two distinct ways that a work will be classified as “made for hire.”the work is created by an employee within the scope of employment; or the work is commissioned, is the subject of a written agreement, and falls within a special group of categories (a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an atlas, an instructional text, a test, or as answer material for a test). The work made for hire status of a work affects the length of copyright protection and termination rights.

The Copyright Act of 1909 mentioned works for hire only in the definition section of the statute, where it specified that "[i]n the interpretation and construction of this title ... the word `author' shall include an employer in the case of works made for hire." 17 U.S.C. § 26 (1976) (repealed), reproduced in 5 Melville B. Nimmer & David Nimmer, Nimmer on Copyright ("Nimmer") app. 6-26-29 (1994). Under this definition, an "employer" who hires another to create a copyrightable work is the "author" of the work for purposes of the statute, absent an agreement to the contrary. See, e.g., Tobani v. Carl Fischer, Inc., 98 F.2d 57, 59-60 (2d Cir.), cert. denied, 305 U.S. 650, 59 S.Ct. 243, 83 L.Ed. 420 (1938). The statute, however, did not define the terms "employer" or "works made for hire." Until the mid-1960's, federal courts applied the work-for-hire doctrine only to cases in which a traditional employer/employee relationship existed between the hiring party and the creator of the work. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 749, 109 S.Ct. 2166, 2177, 104 L.Ed.2d 811 (1989). In 1965, however, the Ninth Circuit applied the doctrine to a case in which an employer commissioned a work by an independent contractor. Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298, 300 (9th Cir.1965). The court held:

[W]hen one person engages another, whether as employee or as an independent contractor, to produce a work of an artistic nature ... the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done.

Id. Other courts around the country have adopted that holding. For instance, in Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567-68 (2d Cir.1966), the Second Circuit Court of Appeals held that an independent contractor is an "employee" and a hiring party an "employer" for purposes of the statute if the work is made at the hiring party's "instance and expense".

Courts have since defined the "instance and expense" test as being met "when the `motivating factor in producing the work was the employer who induced the creation.'" Siegel v. National Periodical Publications, Inc., 508 F.2d 909, 914 (2d Cir.1974) (quoting Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972)). Courts have also held that in the work-for-hire context under the 1909 Act, "an essential element of the employer-employee relationship, [is] the right of the employer `to direct and supervise the manner in which the writer performs his work.'" Picture Music, 457 F.2d at 1216 (quoting Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 643 (2d Cir.1967) (quoting Nimmer, Copyright § 62.31 (1964)), cert. denied, 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968)). See also Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 744 (2d Cir.1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976) (the hallmark of "an employment for hire" is whether the employer could have exercised the requisite power to control or supervise the creator's work).

In Picture Music, the court found that the song "Who's Afraid of the Big Bad Wolf" was a work for hire where the employers, Walt Disney Productions and Irving Berlin, recognized that the musical score of a cartoon could be adapted into a popular song, asked Ann Ronell to do the adaptation, and later paid her royalties in exchange for her work. The court held that the employers "took the initiative in engaging Miss Ronell to adapt" the song and had the power to "accept, reject, or modify her work." 457 F.2d at 1217.

Conversely, in Siegel, the court found that the comic strip character Superman was not a work for hire because although the creators revised and expanded the comic strip at the request of the publishers and were paid for that work, the Superman character was completely developed long before the employment relationship existed. 508 F.2d at 914.

Once it is established that a work is made for hire, the hiring party is presumed to be the author of the work. That presumption can be overcome, however, by evidence of a contrary agreement, either written or oral. Roth v. Pritikin, 710 F.2d 934, 937 n. 3 (2d Cir.), cert. denied, 464 U.S. 961, 104 S.Ct. 394, 78 L.Ed.2d 337 (1983). The burden of proof is on the independent contractor to demonstrate by a preponderance of the evidence that such a contrary agreement was reached. Real Estate Data, Inc. v. Sidwell Co., 809 F.2d 366, 371 (7th Cir.1987); Yardley v. Houghton Mifflin Co., 108 F.2d 28, 31 (2d Cir.1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940).