Monday, August 1, 2016

What is a work made for hire?

What are we talking about when we talk about a work made for hire, also known as a work for hire? Basically, we are talking about work made by an employee for an employer, or a written agreement to create work specifically made by one party for a commissioning party that falls into one of the categories established in the 1976 Copyright Act. Under the work made for hire doctrine, the employer or the commissioning party are considered the authors of the work.
The 1976 Copyright Act defines a work made for hire as “(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, 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. 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.”[1] Later in the Act, it further adds that “the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”[2]
Under the Act, there are two ways that a copyright eligible work that you create might belong to another: (1) if you are an employee, and it relates to and was made during your employment, or (2) if you entered into a work made for hire agreement and it falls into one of the nine categories listed above.
If you are a creator, you need to be aware of the work made for hire doctrine and how it impacts you. First, if you are working as an employee for an employer, or in a relationship that can be categorized as an employer-employee relationship, then any work you create that is related to your employment or is created for the benefit of your employer will be considered work made for hire. This means that your employer will be treated as the author of the work for copyright purposes. Second, if you are hired to work on someone else’s work, it could be considered a work made for hire if you have entered into an agreement stating such, and if the work falls into one of the nine categories listed above. In both of these instances, your copyrightable contributions to the work will be considered to be owned by the person paying you.
At this time, it is not clear that non-employee contributions to comic books fall under the work made for hire doctrine. If they do, it would be under the collective work provision, and this is the approach typically taken by the major publishers like DC and Marvel. The Act defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” As you can see from the definition, it is possible that the work someone contributes to a comic book would not fall under the work made for hire doctrine. In order to protect themselves and their intellectual property, the major publishers also include language in their agreements requiring the freelancer to assign any and all rights they may in contributions to the comic book to the publisher. While this is a good alternative solution, it is not as ideal for the publisher. If the work is a work made for hire, then the publisher owns the copyright rights outright. However, if it is an assignment, then the Copyright Act has a provision that would allow creators to reclaim copyright assignments after 35 years.[3] Obviously, this is something a publisher would prefer to avoid.
If you want to create a comic book, then you also need to make sure you understand the work made for hire doctrine, and how it might impact your rights. For instance, if you want to hire a freelancer to work on your comic book, then you would need to have her sign a work made for hire agreement in order to prevent her from obtaining any copyright interests in your book. This agreement should have a provision stating that she is entering a work made for hire agreement, and that all contributions she makes to the work will belong to you. Additionally, in order to further protect your work, it should also include language assigning all of her possible rights in her work to you. This should prevent the freelancer from unintentionally gaining a copyright interest in her contribution to your work. Obviously, if you want the freelancer to have a copyright interest in her contributions to her work, then a different contractual approach should be taken.
If you are being hired to work on someone’s comic book, then the reverse of the above situation would apply. When you are hired to work on someone else’s comic book, they should have you sign a contract. If they do not have you sign an agreement, then you might be able to claim a copyright interest in your contributions to the work. If you do sign an agreement, make sure you understand what it says and what, if any, rights you will be giving to them.
 By understanding the work made for hire doctrine, you will be better positioned to protect your own creative works when you hire freelancers, and you will be able to understand what rights you are possibly giving away when you sign a work made for hire agreement.

[1] 17 U.S.C. §101
[2] 17 U.S.C. §201(b).
[3] 17 U.S.C. §203

No comments:

Post a Comment