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What Is a "Work Made for Hire"?

Being a boss isn't easy. Small businesses, startups, and entrepreneurs know they need to understand topics like business law and workers' compensation. Most don't know where to start when it comes to intellectual property law. It's important to understand copyright law, especially regarding who owns commissioned work and work made for hire.

This article helps you navigate copyright law, work for hire agreements, and work product.

Intellectual Property and Copyright Law Basics

Intellectual property rights fall into four categories: trademarkpatenttrade secret, and copyright.

Federal Copyright Law

Under U.S. Copyright Law, the Copyright Act dictates what is eligible to be a copyrightable work. Copyrights are available for original works like literary works, sound recordings, and movies. Typically, the work's author in a fixed medium keeps the copyright law protections. They own the original work and any derivative works (subsequent works).

Copyright Ownership

A copyright is typically owned by the artist who created the work, unless the artist sells the copyright or the work was "made for hire."

In 1989, the Supreme Court ruled in Community For Creative Non-Violence vs. Reid that employers own the copyright to works made for hire through employment unless there is a written agreement that says otherwise. This means the employer or hiring party (commissioning party) can sue for copyright infringement.

Work Made For Hire

Generally speaking, according to the Copyright Office and federal law, a work made for hire is a creative work by:

  • An employee while on the job during their regular duties
  • An independent contractor hired to create the work through a written agreement

The copyright on work made for hire belongs to the employer or the party who commissioned the work. Even if the artist is not technically an employee, it may still be a work for hire. A court can determine whether an employment relationship exists between the artist and the employer, even if it is not listed as such in an agreement. The creative artist will not own the copyright on their work. If an employee creates a work on their own time, it is likely not work for hire, even if the employee uses it on the job.

Types of Work Considered Work Made for Hire

Not all creative works qualify for the work made for hire copyright protections.

For consideration, the work must fall into one of the following categories:

  • A contribution to a collective work
  • Part of a motion picture or other audiovisual work
  • A translation
  • A supplementary work, such as a forward to another work
  • A compilation
  • An instructional text
  • A test
  • Answer material like an answer key for a test
  • An atlas

What Is a Commissioned Work?

Entrepreneurs often delegate or outsource tasks to third parties or businesses. This is usually outsourced to an independent contractor. Some everyday tasks are graphic design projects or web page designs. In those cases, examples of commissioned work are where the individual or business:

  • Writes an article
  • Designs a web page
  • Creates a computer program
  • Draws an illustration for a company publication

For a commissioned work to be a work for hire:

  • There must be a written agreement between the parties.
  • In the written agreement, the parties expressly agree it is a work for hire.
  • The work has to be one of nine categories.
  • All parties must sign the agreement.

Work For Hire Agreement

Works made for hire must be detailed in a written agreement between the parties. In these agreements, the creative author acknowledges that copyright ownership of the work belongs to the employer or hiring party. The author of the creative work agrees to this copyright assignment. The individual with exclusive rights to the work is not the author but the business owner who hired them.

Can an Employee Be a Copyright Owner?

Unless a written agreement written agreement says otherwise, an employee is not the owner of a copyright of a work created there. This is because they are doing their duties within their scope of employment.

Can an Independent Contractor Have Work Made for Hire Copyright Protections?

Typically, an independent contractor does not have work made for hire protections. The contractor agreement should outline the contractor relationship and any copyright assignment for it to be a work made for hire. Otherwise, there cannot be a work made for hire.

Courts can determine whether a contractor is an employee depending on the following answers:

  • The skill used to make the work
  • Where the creation of the work happened
  • Who provided the equipment or tools to make the work
  • If the hiring party could hire anyone to help perform their contracted work
  • If the contractor had their own business
  • If the contractor could determine their work hours and schedule
  • If removal of taxes occurred
  • If the work created as part of the regular business hours of the hiring party
  • If the creation of the work was during the creator's authorized work time

Length of Copyright for Work Made for Hire

The employer or hiring party keeps copyright ownership of the work for 95 years from the date of copyright publication or 120 years from the date of creation, whichever expires first. Usually, a copyright author's heirs or successors have termination rights. This means they can usually end the copyright granted to another. However, this is not available to works made for hire copyright assignments.

Need Copyright Legal Advice?

Don't rely on a work made for hire template you find online. Whether you want to hire someone to create something for your business or you want to create creative works for others, ask a copyright law attorney for legal advice first. Make sure ownership of the work is determined.

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Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.

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