[Note: I originally published this post in April 2013. I’m reposting it again - edited for clarity - because I’ve received a lot of questions on Work for Hire lately.]

It strikes me that in the eight months I've been curating this blog, I've never actually explained the Work For Hire doctrine in any meaningful way. I've only tiptoed around it, and that's just ridiculous when you consider the fact that artists generally aren't independently wealthy and need to work for a living. Since most artists make their living by creating their work on someone else's dime, that means they're relying on the Work For Hire doctrine even when they don't realize it.

I bring this up because last Thursday I hosted an alumni-only webinar for my alma mater on important legal topics for artists and artrepreneuers and I made the Work For Hire doctrine a prominent part of that presentation. Based on some questions I got during the lecture, I decided that now was the time to discuss Work For Hire and clear up some important misconceptions about it (especially as it pertains to freelancers) that seem to throw people for a loop. So without further ado, here's my brief primer on Work For Hire. Buckle up, it's about to get informative!

What Is Work For Hire?

The Work For Hire doctrine is a very specific legal principle that arises under U.S. Copyright Law. The basic premise is that in certain situations, an employer will automatically own the copyright to work you do for them as a matter of right. But the manner in which an employer can assert that right depends heavily on whether you're hired as an employee or an independent contractor (or freelancer, to use the non-legalese equivalent).

The Employee Work For Hire

If you're hired as an employee, the work you create for your employer doesn't belong to you, it automatically belongs to the employer. No ifs ands or butts. In employment situations, the ownership over a copyright to a piece of art is no longer determined by the artist's handiwork; it's determined by the motive and desire of the employer. How will you know if you're in an employment situation? Look for the traditional trappings of employment, like salary, benefits, co-workers, office, boss, limited control over your work, etc. If you find yourself in this situation, then unfortunately, the only way you can retain a copyright to work you've created for the employer is if the employer gives it to you in writing.

Here's an example of how that plays out: if a company hires you to design a logo and website for them, but you're paid a salary, you work out of their office, and your employment is indefinite (as opposed to job-specific), that probably means you're an employee. You won't have any rights of ownership over the work except the right to display that work in a portfolio.

But you and I both know that most artists don't work as employees; more often they work as freelancers. And when you're hired as a freelancer, the rules change dramatically.

The Independent Contractor/ Freelancer Work For Hire

If you're hired as an independent contractor or freelancer (you should look for factors like greater control over the work, using your own equipment, working on your own time, short employment periods, etc.), the employer will own the copyright to your work as a matter of right only if all of these requirements are met:

The work is custom-made/ commissioned
Both parties agree in writing that it's a Work For Hire
The work falls into one of these nine categories: (A) a contribution to a collective work, (B) a part of a motion picture or other audiovisual work, (C) a translation, (D) a supplementary work, (E) a compilation, (F) an instructional text, (G) a test, (H) answer material for a test, or (I) an atlas.

So if you're a freelancer, this means that you will own the copyright if any one of these three requirements is not met. Let me repeat that because it's super important... your work must meet all of these requirements to be a Work For Hire; if just one of these requirements isn't met, it isn't a Work For Hire and the employer doesn't get the copyright. One of the biggest misconceptions I see with freelancers is that they usually assume once they complete the work, they no longer have any ownership rights over that work and they walk away, not realizing that they still own the copyright.

Let's return to the website example. You're hired to design a logo and website for a company, but you do the work on your own computer, on your own time, and you send the company invoices for your work. The work is obviously custom-made and let's even say that you and the employer both agree in writing that it's a Work For Hire. Well, it isn't, because unless the websites constitutes a collective work, web and logo design aren't any of the previously mentioned nine categories. That means it's not a Work For Hire and you retain the copyright to your work.

On the other hand, if you were hired as a cinematographer on a film, then as long as you and the employer agreed in writing that it's a Work For Hire, then the copyright would be taken by the employer, since films fall into one of the nine categories considered under copyright law. If you're a film producer and you're hiring above- and below-the-line talent, it's a good practice to put in writing that the work these independent contractors do are Works For Hire because you don't want to get sued for copyright infringement. Remember a few months ago that anti-Islam film that caused all those riots in the Middle East, "The Innocence of Muslims"? Well one of the actresses, Cindy Lee Garcia, sued the film's producer Nakoula Basseley Nakoula for copyright infringement. As it turns out, even though their employer/independent contractor relationship met most of the requirements (custom work, motion picture), there was never a written agreement between the two that it was a Work For Hire. Unfortunately for Nakoula, he has bigger problems than a copyright infringement lawsuit (for example, the jihad against him by radical Muslims for his film's denigration of the Prophet).

Of course, even if your employer has no right to the copyright, you can always convey the copyright (through sale or gift) to the employer if you choose; the employer only has a right to it in the circumstances I mentioned above.

A Bundle of Sticks

If you're a freelancer and you retain the copyright to your work, that doesn't mean you can do whatever you want with it. After all, someone paid you for that work and they have an expectation that no one else will try to profit off of it... even the artist. That's because ownership isn't the only right accompanying a copyright. There are other rights (such as the right to display, the right to make copies, and the right to make derivative works) that go with a copyright as well. We copyright attorneys refer to this as the "bundle of sticks" of which ownership is only one. As a freelancer, you typically relinquish some of those rights via a license (if you don’t sell it outright). If you were to exploit the work in opposition to the terms of the license, you could end up facing copyright infringement, trademark infringement, or breach of contract issues.

So now you may ask "Greg, what's the point of owning a copyright to the work if I can't exploit it?" Well, chiefly it's about control. Licensing the work allows you to control how, when and where the employer can use it. The license can be lax or restrictive, but that will largely depend on the situation, the client, and your relative power in the employment dynamic. Ideally, retaining ownership over the work will allow you, if/when the license expires, to exploit it for your own ends without violating the rights of the client.

How To Move Forward

Whether you’re an employee or a freelancer, one thing is absolutely certain: you need to clarify in every employment contract you sign which party will own the rights to the work and what that party is allowed to do with the work. If you’re a freelancer, ambiguity is the biggest threat to your livelihood. And if you’re an employee, well you won’t own your work, but having a job in a creative field in an growing gig-economy world… well just take solace in the fact that you have a job.

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The Work For Hire Doctrine - A Primer For Freelancers