A “work made for hire” is —
(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.
It is important to determine if an artist who is making a work for another person is working more like an employee of "the boss", or if he is acting as an independent contractor on a specially ordered or commissioned work. If he is an employee, the initial copyright owner is the employer. If e is not an employee, then the initial owner of the copyright is the artist unless the parties agreed otherwise in writing. Generally, determining whether an artist is an employee ( and the work a work for hire) or an independent contractor is based upon a consideration of several criteria, including the following:
(1) the level of skill required- greater required skill weighs against a work for hire.
(2) the source of tools and instruments used- if provided by the artist, less likely to be found a work for hire.
(3) the location of the work- if done on artist's premises, less likely to be a work for hire.
(4) the duration of the relationship between the boss and the artist- shorter duration is less likely to be a work for hire.
(5) the degree to which the boss has the right to assign the artist to other tasks- if the boss can do this, more likely to be a work for hire.
(6) the artist's discretion in setting his hours- if the artist can do this, more likely not a work for hire.
(7) the method of payment- if the same as other employees, more likely a work for hire.
(8) the artist's role in hiring and paying any needed assistants- if he hires and pays assistants, less likely to be a work for hire.
(9) whether the work is part of the regular business of the boss- if it is, more likely to be a work for hire.
(10) whether the boss is, in fact, in business- if not, more likely not a work for hire.
(11) whether the boss provides employee benefits for the artist- if he does, more likely a work for hire.
(12) whether the boss withholds taxes from the artist's pay- if he does, more likely a work for hire.
The creator of a work for hire has very few rights under copyright law. Thus, it is very important to understand who owns a commissioned work and generally best to get it in writing from the start.
So who owns the copyright in a collection of stories or photographs with many different artists? I'll talk about that next time. In the meantime, if you have any questions about copyright law, email us or post them on the blog. The email is JDellinger@mainspringlaw.com. We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.