If you take a closer look into your favorite movie, television show, or song, you may come to realize that there are a lot of different components that go into these productions. Even more so, each individual who contributed to the project may have different roles in the production as well. Take a hit song for instance; the music that you are listening to is likely owned by a record label and/or a publisher. Although it is the artist’s song that you are listening to, the song is likely owned by someone other than the artist. Likewise, the important individuals who produced or mastered the song likely have no ownership interest in the song either.
This comes from an important concept in copyright law called a “work-for-hire.” Under the U.S Copyright Act, a work-for-hire is something that is either a work prepared by an employee within the scope of their employment or a “work commissioned for use as a collective work, 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 an 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” (17 U.S.C 101) .
Before explaining the concept of work-for-hire more, it is essential to understand why it is so important for something to be categorized as a work-for-hire. What it mostly comes down to is ownership. When a work-for-hire is commissioned either by an employer or by someone contracting an individual or a group to create the work, that person is entitled to the complete ownership of the copyright within that work. Since the owner of the copyright is the only one who is legally allowed to exploit the work (without permission or a license otherwise), this means that the owner gets all of the money that comes out of the work.
Now that you see some of the importance of a work-for-hire, we can discuss what it is and when it applies. Normally, a person automatically owns the copyright in the work that someone creates (an artist owns the painting, a writer owns the book, etc.), but when something is designated as a work-for-hire, the employer or the person commissioning the work automatically becomes the owner. As I mentioned above, the work-for-hire concept is often found in an employer-employee relationship. A big issue that the courts have had to deal is when an independent contractor is involved, but that is a topic for another article. The reason that the employer-employee relationship requires that the works that are created by an employee become the property of the employer is simple; the employee is being employed to create the work (note the “within the scope of employment” definition above; whether someone is within their scope of employment is again, another issue).
In addition to the typical employer-employee relationship, there are also the works that are commissioned by another person. This is where we come back to the example of the song, or a movie, or a television show. A movie is a great example because it is even defined in the U.S Copyright Act as something that a work-for-hire may qualify for. Songs often qualify as well under one or more definitions such as “collective work” or “compilation”. The reason songs qualify is because they are actually compilations or collective works. If you think about it, it is not as often that you find an artist that writes, records, producers, and masters their own song (Although these artists still do exist!) and that’s where the compilation part comes in.
So to bring it all together, a work-for-hire is a vital piece of copyright law that allows other people to own and monetize off of the work of others. Of course, the people who make it are often rewarded (think advances, royalties, cash compensation, etc.) and that is just one part of what makes the entertainment industry function.
For more information on the concept of a Work-for-Hire, contact Biletsky Law.