Work-for-hire agreements help you sidestep surprises about a copyright’s rightful owner

Copyright law does not protect ideas.  By default, the person who first brings a creative idea into a permanent form – the one who puts pen to paper and draws an animated character, or records a new song, or writes a promotional piece for a business –is the one who can rightfully claim copyright.  Sometimes, though, you need to be the owner of the copyright for a work that you hired someone to create.  In this case, you may need to have in place a written work-for-hire agreement.

A work-for-hire agreement is absolutely necessary if you want to claim copyright for something that you specially commission an independent contractor to create.  If the person creating the work for you is your employee, though, a written agreement may not be required.  You need to consider several factors to determine whether the relationship is truly “employer-employee,” including how much control you have over the person and over his or her work.  If the person is acting as an independent contractor, a written agreement will be required for the independent contractor’s creation to be considered your property.

Another important consideration is that only certain types of creations that an independent contractor may be enlisted to prepare can ever be considered a work made for hire.  The Copyright Act tells us that a work commissioned from an independent contractor may only be a work made for hire if it is a contribution to a collective work, a part of a motion picture or other audio-visual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas.  If the work falls into one of these categories, then it is eligible to be a work made for hire.

In sum, if you commission an independent contractor to create a work for you that falls into one of these categories, then you should have a work-for-hire agreement drafted and signed before the independent contractor gets started.

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