Copyright Works for Hire
Attorney Michael Lasky discusses Copyright Works for Hire
Email: [email protected]
Phone: (404) 441-1750 or (952) 253-4106
Hi, my name is Michael Lasky, I’m an intellectual property attorney, and I’m going to give you a super short course in copyright works for hire. Let me first start out by saying that when congress passed the 1976 Copyright Act they did a terrible thing by using the words works for hire because they seem to mean something. They mean nothing. They’re a legal term you need to forget what they mean because it is the number one way you’re going to get in trouble. They are not works, they are not for hire they are just a legal term that means who owns the copyright of a work.
Initially, copyright vests in the author but the author isn’t always a human. It can be in which case it’s pretty clear the author is the owner. But the author can be an employee. So if you’re an employee and you work for a company then the company is the author and it becomes quite relevant because they become the initial owner of copyright. That’s really simple, you work there, they hired you to work there, okay, it’s work for hire, eh, it kind of works. But now it gets complicated because there’s a whole other group of people who can also be covered under works for hire and normally attorneys and others think that just because they work for you either as a subcontractor or something then it is a work for hire. That is not what congress had in mind in 1976 they had something completely different.
In the slide you will see that there are nine types of works that can be works for hire and if it isn’t’ one of those it can’t be. So if it’s a contribution to a collective work it could be a work for hire. If it’s a translation, it could be a work for hire. So you have to find that the work falls under one of these nine and if it doesn’t, it can’t be a work for hire and if you want to own it that is, if you paid for it you don’t own it until you do an assignment of the copy right to your company, which is not the same as a work for hire. But okay, you have to get through these nine and you’ll see them on the slide.
Now let’s suppose it is one of the nine and the most common one is a collective work. It’s a piece of a work that goes into some other work. All right, we’re halfway there or maybe a quarter of a way there. The second requirement to be a work for hire is that there has to be a written agreement between the parties that it is a work for hire. Okay, so it can’t be verbal, it has to be written. The third requirement it has to be signed by both parties. Normally when you would do a contract the party that’s getting paid signs but it won’t be sufficient, both parties do have to sign or it’s not a work for hire. And the last element, which is very hard to have happen with all the other three before it is that agreement that is signed, has to be signed before the work is completed.
So what’s the chance that a work that is not made by an employee is a work for hire, not very great. So don’t assume that you have ownership of a copyright of a work unless you have either done all the steps that I just said or you do a document that assigns the work. Now why would you care whether it’s a work for hire or whether you assign it? Well, first of all, the most common reason is you forgot to do all these documents or all these steps and therefore, you didn’t own it that’s going to be a problem.
There’s a second reason, which seems less important but has turned out to become important now and that is there is something really peculiar in the copyright law that says you are entitled to get your work back if you transferred it to somebody by assignment but not if you transferred it by work for hire. So if you have written a Beetles song and it’s produced enormous amounts of money 35 years later there is a very small window of opportunity to recover the work that you sold. You sold it all and you gave all away your rights but you did by assignment not by work for hire you have a right of reversion, so it may make quite a bit of difference. Most often copyrightable works don’t last that long but some of them are really valuable.
Now, all that I’ve told you is true for the United States what about foreign countries? No such rule it’s all different. Copyright law is not international. It is national but there are treaties that allow for protection in other countries. You will see this slide called moral rights it is a very peculiar concept I’m not going to go into it in detail but just understand this, if the work was created in a foreign country then the copyright law that applies is the law of that foreign country. And more than likely they don’t follow the work for hire rules that we have and they do follow the moral rights requirement, which are very peculiar.
All right, now you know a great deal more about work for hire, probably not enough but it’s a good start. Thanks very much.