col aborate to become joint authors.
discussion in Chapter 8, “Transferring
Copyright Ownership.”)
CHAPTER 7 | INITIAL COPYRIGHT OWNERSHIP | 163
Who Owns Copyright in
The owner of a work made for hire is
Unpublished Letters?
considered to be the author of the work
whether the owner is a human being or
Writers and historians may be especial y
a business entity, such as a corporation
interested in who owns the copyright in
or partnership. As the author, the owner
unpublished letters. Unless written by
is entitled to register the work, exercise
an employee as part of his or her job, the
its copyright rights in the work (such as
copyright in a letter usual y is owned by the
publishing the work or adapting it to a
person who wrote it. The recipient of the
different medium), permit others to exercise
letter owns only the physical letter itself—
these rights, or sell all or part of its rights.
that is, the paper and ink with which it was
The actual creator of a work made for
written. This means the recipient may not
hire has no copyright rights in the work;
reproduce or publish the letter without the
the creator may not sell it, publish it,
writer’s permission. The recipient of a letter
prepare a derivative work from it, or even
may, however, show it to others, deposit it
read it in public. All the creator receives
in a library, sell it, or even destroy it. But a
is compensation from the hiring party,
purchaser would acquire only the physical
letter, not the copyright in the letter—
whether a salary or other payment.
that is, a purchaser could not publish or
EXAMPLE: Real estate magnate Donald
otherwise exploit the writer’s copyright
Frump orders Manny, a longtime employee
rights without permission.
who serves as Donald’s publicist and
ghostwriter, to write his autobiography. The
resulting book, entitled The Art of the Steal, is
a world wide bestseller. It is also a work made
for hire. Donald earns $1 million in royalties
Works Made for Hire
and sel s the film rights for another $1 mil ion.
Manny asks Donald for a 10% share of these
Not all works are initially owned by the
monies, reasoning that he is entitled to them
person or persons who actually create them.
since he actual y wrote the autobiography.
If you create a protectable work on someone
Donald refuses, but tel s Manny he’ll give him
else’s behalf, that person (or entity) may be
a $50 a week raise. Manny can take the raise
considered the work’s author and thereby
or leave it, but he is not legal y entitled to any
initially own the copyright in the work, not
royalties from the autobiography. As far as
you. These types of works are called works
the Copyright Act is concerned, Donald is the
made for hire.
book’s author.
164 | THE COPYRIGHT HANDBOOK
Obviously, it is vitally important for all
Some History About
writers to understand what is and what is
Works Made for Hire
not a work made for hire.
Before the Copyright Act took effect in
1978, no distinction was made between
There Are Two Different Types
works created by employees as part of
of Works Made for Hire
their job and commissioned works; both
were automatical y considered to be works
There are probably only two reasons why
made for hire unless the parties expressly
you or anybody else would go to the trouble
agreed otherwise. No written work-for-hire
of creating a protectable work for another
agreement was ever necessary. When the
person or entity: (1) You are that person’s
1976 Copyright Act was being drafted,
employee and creating the work is part of
organizations representing writers and
your job, or (2) a person or an entity that
other creative people strongly urged
is not your employer—a magazine, for
that works made for hire be limited
instance—asks you to create the work for
to those created by actual employees,
payment or some other remuneration (the
and that commissioned works created
Copyright Act calls this specially requesting
by nonemployees not be considered
or commissioning a work).
works for hire. This way, the author of a
As a result, there are two different types
commissioned work would be the initial
of works made for hire:
owner of all the rights in the work and
• works prepared by employees within
would give to the commissioning party only
the scope of their employment, and
those rights he or she expressly agreed to
• certain works prepared by non-
give up in a transfer agreement. Publishers,
employees that are specially ordered or
film producers, and others strongly
commissioned where the parties both
opposed this. A compromise was reached
agree in writing that the work shall be
that was a partial victory for writers. Under
considered a work made for hire.
the Copyright Act, commissioned works
would be works made for hire only if their
Let’s examine each type of work made
creators agreed in writing; and work-for-
for hire.
hire status was restricted to nine categories
of commissioned works listed below in
Works Created by Employees
“Works Made for Hire by Nonemployees.”
as Part of Their Job
Works prepared by employees continued to
be works for hire just as they were before.
A natural consequence of the employer-
employee relationship is that the employer
owns whatever it pays an employee to
CHAPTER 7 | INITIAL COPYRIGHT OWNERSHIP | 165
create. It’s assumed that an employee agrees
• just who is an employee, and
to this when taking a job. For example,
• exactly when a work is written within
Ford Motor Co. doesn’t have to tell persons
the scope of employment.
it hires to work on its assembly lines that
they won’t own the cars they make or
Who is an employee?
have them sign contracts to this effect.
The U.S. Supreme Court has held that a
Similarly, an employer doesn’t have to tell
person is an employee for copyright purposes
an employee that it will own copyrightable
if the person on whose behalf the work is
works created on the employer’s behalf—the done has the right to control the manner and employee is supposed to know this without means by which the work is created. It makes
being told. For this reason, no written<
br />
no difference what the parties call themselves
work-for-hire contract is required in the
or how they characterize their relationship.
employer-employee context.
If the person on whose behalf the work
EXAMPLE: “Scoop” Jackson is hired to be
is done has the requisite right of control,
a salaried reporter for the Yakima Daily
the person hired is an employee and any
News, which is owned by a privately held
protectable work created within the scope
corporation. He is required to write stories
of employment is a work made for hire. It
for the regular online and hardcopy editions also makes no difference whether the control of the newspaper as well as post material
is actual y exercised, so long as the right to
on the newspaper’s blog and Twitter feed.
exercise it is present. ( CCNV v. Reid, 109
This content will be considered works made S.Ct. 2166 (1989).)
for hire, and the Daily News will own the
If a legal dispute results as to whether
copyright to it. The Daily News does not
the creator of a protectable work was an
have to tell Scoop this and need not draw
employee, the courts are supposed to
up a work-for-hire agreement for him to sign. examine a variety of factors to determine
The example above is obvious, but the
whether the requisite degree of control was
work-made-for-hire rule is not limited to
present in the relationship. Many of these
works written by in-house editorial staffs.
criteria are quite broad, and there are no
The rule extends to anything written by any concrete guidelines as to how they should
employee within the scope of employment,
be applied. As a practical matter, this means
including reports, memoranda, letters, and
that judges have great discretion in deciding
in-house newsletters.
who is and who isn’t an employee for
One problem in applying the work-made- copyright purposes.
for-hire rule in the employer-employee
Two factors are of prime importance:
context is determining:
• whether the hiring firm pays the
worker’s Social Security taxes, and
166 | THE COPYRIGHT HANDBOOK
• whether the hiring firm provides
is involved, there is always a risk it will not
employee benefits.
be deemed an employment relationship
The court held that a part-time computer for copyright purposes. This could happen
programmer employed by a swimming pool even though you treat such a worker as an
retailer was not the company’s employee for employee for tax purposes.
copyright purposes and the programmer
was therefore entitled to ownership of a
Factors Considered in
program he wrote for the company. The
Determining Employee Status
court stated that the company’s failure
to provide the programmer with health,
Here is a list of some of the factors judges
unemployment, or life insurance benefits,
are supposed to consider in determining
or to withhold Social Security, federal,
if a person is an employee for copyright
or state taxes from his pay, was a “virtual
purposes. This is not an exclusive list, and
admission” that the programmer was an
no single factor is determinative:
independent contractor. The court stressed
• the skill required to do the work
that the company could not treat the
• the source of tools and materials
programmer as an independent contractor
used to create the work
for tax purposes and then turn around and
• the duration of the relationship
claim he was an employee for copyright
• whether the person who pays for
ownership purposes—he had to be treated
the work has the right to assign
additional projects to the creative
the same way for both purposes. (Aymes v.
party
Bonelli, 980 F.2d. 857 (2d Cir. 1992).)
• who determines when and how long
The moral is this: If you don’t pay a
the creative party works
worker’s Social Security taxes or provide
• the method of payment
him or her with benefits, you should assume
• who decides what assistants will be
the worker is an independent contractor for
hired, and who pays them
copyright ownership purposes.
• whether the work is in the ordinary
Given the track record in the courts,
line of business of the person who
you can probably safely assume that a
pays for the work
formal salaried employee for whom you pay
• whether the creative party is in
Social Security taxes and employee benefits
business for him- or herself
would be considered an employee for
• whether the creative party receives
copyright purposes. However, the rules are
employee benefits from the person
ambiguous and given to highly subjective
who pays for the work, and
interpretation. When anything short of a
• the tax treatment of the creative party.
formal, salaried employment relationship
CHAPTER 7 | INITIAL COPYRIGHT OWNERSHIP | 167
TIP
Letter to the Y akima Daily News
A person who pays someone else
to create a protectable work should not rely
March 1, 20xx
on the work-made-for-hire rule outside the
Bill Hearst, Publisher
context of a formal salaried arrangement.
Yakima Daily News
Instead, the person should have the creator
1000 Main St.
transfer to him or her the needed rights. A
Yakima, WA 90002
written agreement must be signed by both
parties to accomplish this.
Dear Bill:
This letter is to confirm the understanding
we’ve reached regarding ownership of my
When a work is created within
novel, tentatively titled You Are What You Eat.
the scope of employment
You acknowledge that my novel will be
Not everything an employee writes belongs
written on my own time and shall not be
to the employer. An employee’s writings and
written within the scope of my employment
with the Yakima Daily News.
other copyrightable works are works made
for hire only if they are created within the
It is expressly agreed that I shall be the owner of
scope of employment. An employee’s work
all rights in the novel, including the copyright.
is created within the scope of employment
Furthermore, the Yakima Daily News will sign
all papers necessary for me to perfect my
only if it:
ownership of the entire copyright in the work.
• is the kind of work the employee is
paid to perform
If this agreement meets with your approval,
&n
bsp; • occurs substantially within work hours
please sign below to make this a binding
at the work place, and
contract between us. Please sign both copies
and return one to me. The other signed copy
• is performed, at least in part, to serve
is for your records.
the employer. ( Mil er v. CP Chemicals,
Inc., 808 F.Supp. 1238 (D. S.C. 1992)
Sincerely,
(quoting Restatement of Agency).)
Scoop Jackson
Scoop Jackson
Unless an employer and employee agree
otherwise, anything an employee writes
I agree with the above understanding and
outside the scope of employment is not a
represent that I have authority to make this
work made for hire. This is so even if the
agreement and to sign this letter on behalf of
work arises out of the employee’s activities
the Yakima Daily News.
on the employer’s behalf.
Bill Hearst
Date: March 2, 20xx
168 | THE COPYRIGHT HANDBOOK
EXAMPLE: Recal our intrepid reporter Scoop
The agreement can be entered into
Jackson in the example above. Assume that
either before or after the employee creates
Scoop writes a series of articles for the Yakima the work. See Chapter 8, “Transferring Daily News exposing unsafe practices in
Copyright Ownership,” for a detailed
the meat packing industry. Of course, these
discussion of transfer agreements.
articles are works for hire the copyright to
which is owned by Scoop’s newspaper. Scoop
EXAMPLE: Assume that Scoop Jackson in the
also writes a novel on his own time about
example above wants to write a nonfiction
a reporter who exposes the meatpacking
book based on his articles about the meat-
industry. Although the novel is based on
packing industry. Of course, these articles were
Scoop’s experiences as an employee-reporter,
works made for hire and Scoop’s employer, the
it is not a work for hire because it was not
Yakima Daily News, is considered their author
created within the scope of his employment—
for copyright purposes. For this reason, only
that is, his job duties as a reporter did not
the Daily News has the right to create deriva-
include writing fiction.
tive works based upon them. Scoop gets the
Daily News to agree to let him create a book
Works created by an employee outside
from the articles. Scoop and the News must
the scope of employment are automatical y
both sign a transfer agreement. It might look
The Copyright Handbook Page 30