What is a work made for hire?

Glenn W. Peterson

Ordinarily, if you create an original work of authorship in California and fix it in a tangible medium of expression, you automatically hold the copyright to it. That copyright is yours unless you transfer it to someone else. Otherwise, even when you die, your estate will retain the ownership of it for many years thereafter. However, there is one notable exception to this rule. If someone hires you to create a work of authorship for business purposes, it may be a work for hire, which means that the entity for whom you created the work holds the copyright, not you.

According to the American Bar Association, you do not have to be an employee to create a work for hire. If a company hires an independent contractor to create a creative piece, it could qualify, although this does not follow automatically. The company and the independent contractor should enter into a contract delineating who retains the copyright of any intellectual property that results from the business relationship if the work falls outside the realm of what automatically qualifies as a work for hire, which includes translations, contributions to a collective work and parts of motion pictures.

There are three criteria to determine whether the works you create as an employee qualify as works for hire:

  • Performed to serve the employer, at least in part
  • Occurred during authorized working hours
  • Comprised a portion of your normal job duties

Copyright protection on works for hire lasts much longer than on other properties: up to 120 years after the work’s creation for the former, compared with only 70 years after the author’s death for the latter.

The information in this article is not intended as legal advice but provided for educational purposes only.