by Gouen Son
Things get complicated when you hire another person to create a work on behalf of you. If you are an executive film producer and hire a writer to create a screenplay, a copyright ownership of that screenplay doesn’t necessarily go to the writer just because she created the work. This exception is called “work made for hire”(WMFH).
There are two ways that you (employer) can own a copyright if:
- a writer prepared the work within the scope of employment; OR
- a writer is hired as an independent contractor that satisfies statutory requirements
A writer prepared the work within the scope of employment:
There are three criteria to decide if her performance satisfies this requirement:
(1) whether the work is the kind of work the employee is employed to perform;
(2) whether the work occurs substantially within authorized work hours;
(3) whether it is motivated, at least in part, by a purpose to serve the employer.
A writer is hired as an independent contractor that satisfies statutory requirements:
If you have signed a WMFH contract, that does not necessarily mean that a work is automatically deemed WMFH. It needs to be determined whether your situation meets these statutory requirements.
Independent contractor is defined as a person 1) to whom a work is specially commissioned and 2) who signed a contract before an independent contractor creates the work.
When it comes to a contract agreement, the fact that you signed a WMFH contract doesn’t necessarily mean that a work is automatically deemed WMFH. A contract must be signed before the work is created.
Once you get over the first hurdle, there are nine categories of works that fall under WMFH:
1) a contribution to a collective work 2) a part of a motion picture or other audiovisual work
3) a translation 4) a supplementary work 5) a compilation 6) an instructional text 7) a test 8) answer material for a test or 9) an atlas
As you can see, a case of an independent contractor presents more statutory requirements. Run through all of these steps and make sure that you own a copyright of a work.