When you create a work for someone else, you may not always be considered the actual author of the work. In such a case, these works are categorized as works made for hire. Take for instance, an individual hires you to create illustrations for a picture book. The individual in this scenario will be considered as the author of these illustrations although you created them. Therefore, the individual has the right to copyright, sell, or allow others to use the work.
Types of Works Made for Hire
There are two types of works made for hire. One is done based on employment. You’re an employee for a person or company and part of your job is to create work for a specific purpose. On the other hand, you may be commissioned by an individual or company for whom you’re not employed. In this case, the individual or company commissioning you may pay or provide you with remuneration for creating the work.
Works Created by Employees as Part of the Job
When you’re employed by a company to carry out a specific function, such a role is viewed under an employment setting. For example, you’re an employee of Company A, and you’re assigned to create newsletters for an upcoming event. The employer does not have to inform you that the company will own the copyright for those newsletters. Furthermore, it unnecessary to develop a work for hire agreement and have you sign it. The work made for hire rule also applies to areas of employment where you may be required to develop reports, letters, or anything of a similar nature.
Factors that Determine if You’re an Employee in a Work Made for Hire
There are several factors that may determine if you’re an employee in a work made for hire. The person paying for the work has the right to assign the employee additional work. The tools and materials are provided by the employer. The employee receives benefits from the employer. The employer determines the duration of the project. There are specific skills required to fulfill the job. These are a few factors that judges consider when determining if the party involved in the work made for hire is an employee or an independent contractor. If the employer is not paying social security taxes or providing an employee with benefits, then this worker would be considered as an independent contractor.
There are occasions when works created by employees do not belong to the employer. To be considered as a work made for hire the employee must be paid for that kind of work; the creation of such work is done on the work schedule and at the workplace; and the work created is of some benefit to the employer. If the scope of employment does not match these requirements, then the work performed by the employee would not be considered as a work made for hire. This is also applicable to cases where the employer solicits the assistance of the employee for projects that are not relevant to his line of work.