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The Work-for-Hire Minefield

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  • Do you think that any book written for a fixed fee is a work-for-hire…and that any book written for royalties is not?
  • Do you think that, if you commission a writer to prepare the manuscript for the next in a series of travel guides written to a form and specification that you developed, the writer’s work will be for-hire?
  • Do you think that a ghostwriter’s work product is for-hire because the ghost got a flat fee and no author credit?

If you think any of these things, welcome to the club of the misinformed. You have a lot of company. Few aspects of copyright law are as widely misunderstood.

“Work-for-hire” is a statutory exception to the default rule in the United States that the copyrights in a work of authorship vest initially and automatically in the human author of a

copyrightable work as soon as that work is somehow recorded or preserved (e.g., by putting pen to paper or clicking on “Save”). As a statutory exception, work-for-hire is narrowly circumscribed.

How does work-for-hire help publishers? Despite widespread confusion about the answer, there is a clear number-one reason.. A work that is created for-hire is not subject to the essentially nonwaivable right of termination that otherwise gives the human creator of a work the ability to recover the rights in that work 35 years after it is first published.

Conversely, a simple assignment, even though it appears on its face to be a permanent transfer of rights, is subject to being unilaterally revoked by the author or the author’s heirs during a 5-year window that opens 35 years after first publication. The closer you get to the termination window, the bigger the negative impact on the value of the rights held by the publisher. If a work is likely to have a shelf life of more than 35 years, securing the rights as work-for-hire will add value to its publisher’s copyright portfolio.

The No-Good Guidelines

The widespread assumption in the book publishing business is that a work is a work-for-hire if it fits the pattern typical of work-for-hire deals. This, however, is not the case. Writing to spec, flat fee in lieu of royalties, absence of author attribution—no one of these is sufficient to establish a work as for-hire, and all of them together aren’t sufficient either.

It is true that many fixed-fee assignments are done on a work-for-hire basis, but it is not because they are fixed-fee that they are for-hire (and a royalty deal can be for-hire as easily and as often, under the right circumstances).

It is true that many specially commissioned assignments are done on a for-hire basis, but commissioning a work, without more, is not enough to establish it as for-hire.

And ghostwriters and contract writers may be engaged for-hire to write behind the scenes, but anonymity, without more, is not what makes their work product for-hire.

Looking at the Law

Title 17 of the United State Code says, “Copyright in a work protected under this title vests initially in the author or authors of the work.” Thus, in the absence of some exception, the copyrights in works created in the United States belong to the human authors of those works. A publisher that wants to own such a work will have to acquire it by assignment or license unless a work-for-hire exception applies.

When a work has been created by an employee within the scope of the employee’s employment, U.S. copyright law provides that that work is considered made-for-hire, and the employer, rather than the employee, is considered by default to be the sole author and owner for copyright purposes. The rights vest automatically in the employer, and no written agreement is required.

This special treatment for works created by employees makes good sense: work created to the specification, under the supervision, and at the risk of an employer should logically belong to the employer. The employee gets compensation

in the form of a salary and benefits; and he or she has the protection of state and federal employment laws that serve as a sufficient substitute for the protections for human authors otherwise written into U.S. copyright law.

But for the employer to take advantage of this automatic vesting, the employee must be a legally recognized employee—generally paid out of the employer’s payroll system (getting a W-2 at the end of the year) and not out of its payablessystem (getting a 1099 at the end of the year); subject to income tax withholding; eligible for benefits; and covered by workers comp and unemployment insurance.

The work-for-hire provision in U.S. copyright law also provides that a work may become for-hire if it is prepared by an independent contractor, and not by an employee, if and only if the commissioning party complies with each of four requirements:

  1. The work must be specially ordered or commissioned (no in-process or over-the-transom submissions).
  2. The parties must expressly agree in advance of the work’s creation that the work is to be for-hire.
  3. That agreement must be in writing and signed by both parties.
  4. The work must fall into one of the categories listed in the statute:
  • a contribution to a collective work
  • part of a motion picture or other audiovisual work
  • a translation
  • a supplementary work
  • a compilation
  • an instructional text
  • a test
  • answer material for a test, or
  • an atlas

(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. Examples of supplementary works are forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes. An “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.)

Miss any one of these four requirements and you’d better have a backup plan, because you do not have work-for-hire.

Magazine publishers, map publishers, encyclopedia publishers, educational publishers, and filmmakers will find some comfort in the above list. Most trade publishers and publishers of cookbooks, children’s books, craft and hobby books, computer books, and photography books will not.

If you are not publishing into one of the statutorily recognized categories, you are not going to be getting work-for-hire except from your staff writers and editors.

The Consequences of Mistakes

If you think that a work is for-hire and it turns out not to be, then one of three scenarios will cause problems.

In a worst-case scenario, you assumed that a work was for-hire and that therefore it belonged to you automatically and you did not need a written agreement with, or assignment from, the writer. But without a written instrument that transfers the rights you intended to acquire to you, the best you can get as a matter of law is a nonexclusive license of indeterminate scope and duration. You may not be able to repurpose or alter the work without paying additional fees, and you will not be able to stop the writer from repurposing the work, including for your competitors.

In a slightly better, but still undesirable, scenario, you had a written agreement and it provided for an assignment of all rights to the work to you as a backup in case the work-for-hire provision was ineffective as a matter of law. Here, you do end up with exclusive rights to the work, but those rights are subject to certain continuing and inalienable rights of the human author, among them a right—exercisable by the author or the author’s statutory heirs in 35 years—to terminate the grant to you and recover the rights in the work (or resell them to you at a price to be negotiated).

And in a third scenario, you assumed that the work you commissioned and paid for was a work-for-hire when it wasn’t, and, based on your belief, you applied for copyright registration of the work as a work-for-hire with the Copyright Office. The registration you secured through that application will be defective in ways that may severely compromise your enforcement options if and when you are called upon to sue a would-be infringer.

Best Practices

Make sure you, and everybody on your acquisitions staff responsible for commissioning work, understand work-for-hire and how it operates.

Make sure you use a written contract with all nonemployees who contribute copyrightable authorship to your works.

If and when those written contracts have work-for-hire provisions in them, make sure they have been tightly drafted by a lawyer competent in copyright matters and that they have backup assignment provisions (against the possibility that they may be used in situations where work-for-hire is not possible as a matter of law).

Be on the lookout for employment law issues as well. Work-for-hire agreements may inadvertently create withholding, insurance, and benefit obligations to the people who provide the works.

Consider using written contracts even with your staff writers. Although their work product will be for-hire by default, work-for-hire is only a copyright concept, so if other intellectual property rights (e.g., trade secret rights) are embodied in the staffer’s work product, ownership of those will not have been addressed.

Moreover, work-for-hire is a uniquely U.S. concept not widely recognized or respected in other jurisdictions. If you have to enforce your rights in staffer-generated work in other countries, you may need the support of a written agreement to get traction.

In short, be careful with your copyright registrations in this context as well as others. Representing a work as for-hire on a copyright application when it isn’t a work-for-hire may undermine your enforcement options if and when the need arises.

Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. A member of IBPA, he contributes frequently to the Independent. To reach him: sgillen@whe-law.com.

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