[Art] Work Made for Hire
When an artwork or other creative work is made, two distinct properties are created, 1. the physical product (the painting, drawing, sculpture, photo, etc.) and 2. the copyrights to that work. Copyrights do not automatically follow the physical work when it is sold or transferred, unless an agreement specifies otherwise. Thus, when an artist independently creates an artwork the artist owns both the physical artwork and the associated copyrights. The artist may sell the painting, but retain the copyright; may sell the copyrights and retain the original; may transfer the copyright and the painting together. The copyrights may also each be transferred separately. (See exclusive rights and authorship & ownership)
The term work made for hire refers to circumstances where a product (object or intellectual property) was produced within the confines of an employment or employment-like situation, or as a commissioned work. Work made for hire is created when either 1. an independent contractor (freelancer) creates the work, or 2. an employee creates it within the scope of his or her employment. When work is made for hire, the employer/hiring party is considered to be the legal author of the work, rather than the artist. The legal author is the (initial) owner of the copyrights associated with the work. So when a work is made for hire, certain rights, such as that of using and registering the copyright, belong to the employer, not the artist. In regards to moral rights, this may differ. These rights are separate from copyrights and may or may not be affected by the employment/for hire situation. Moral rights, such as the right to be associated with the work (attribution) are retained by the actual author unless they are specificaly waived by a written and signed agreement. See Visual Artists Rights Act page.
Duration of Copyrights
Whether a work is for hire or independently created also effects the duration of the copyright. The duration of copyright for work made for hire is the shorter of 95 years after publication or 120 years from creation, rather than the life plus 70 years term for works that are independently created. (In the United States this applies to for works created on or after January 1,1978.)
Disputes
When the issue of whether work was for hire or not is at issue, the dispute may not be solely in regards to ownership of the physical object created, but may involve the intellectual property associated with the work. Generally in a visual art context, the intellectual property consists of the copyrights associated with the artwork. (However, patents, trademarks, trade secrets or sui generis1 property rights may be involved as well). Copyrights are the legal ability to control the object’s reproduction, distribution, and other such important issues. For an employer, the physical artwork may not be of significant value without the right to make copies of the work and distribute them.
Questions may arise when the boundaries, the scope, of the work to be done is not clear. Whether the work belongs to the hiring party–the employer, may depend upon the specifics of the agreement, as well as the actions and understandings of the people involved. Because different rules apply to the situations, the question of ownership may also depend upon whether the artist was hired as an employee or as an independent contractor.
Made for Hire, or made by Independent Creation?
As mentioned above, whether a work is made for hire depends upon the context in which it was made. The first step in determining if the work was for hire is to determine whether the person who created the work was an employee or an independent contractor; different considerations and laws apply to each situation. If the person who made the work was neither an employee nor an independent contractor, then the work was not made for hire.
Independent Contractors
Works made by independent contractors are commissioned works. When an independent contractor has created the work, certain conditions must apply for the work to be legally considered a work for hire. There must be a specific agreement and work may only be one of the type specifically defined as for hire in the law. (Copyright Act §101(2)).
The requirements that must be fulfilled for independently contracted work to be considered work made for hire are:
| 1) An express agreement must state that the work is made for hire (a written, signed contract). | ||
| 2) The work must belong to one of these categories: | ||
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work ordered as contribution to a collective work | |
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part of a motion picture or other audio visual work | |
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as a translation | |
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supplementary work | |
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as a compilation | |
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as an instructional text | |
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as a test, as answer material for a text | |
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as an atlas | |
| If the work is not one of those listed above, and if the work was made by an independent contractor, then the work is not work made for hire. | ||
Employees
In a typical employment situation it is usually clear that the work product belongs to the employer –the work is made on the employer's premises, with the employer's resources, and on the employer's time (via salary to the employee), etc. However, in some circumstances it is not clear as to whether the employer owns the work product or not. A dispute over copyrights may arise when the employee creates something that may be outside of the boundaries (scope) of what was understood or in situations where the employee interprets the work to have been made independently, regardless. The line between an employee's personal activity and the employer's area can sometimes be blurry when creative products are involved. When the work product (e.g., artwork or the associated copyrights) is in dispute, the question of whether the work was made for hire– within the scope of employment or not–is significant.
A court will look to certain factors when determining whether the work was made with in the scope of the employment, such as whether the work was made for the employer, if it was of the type the employee was hired to create, whether the employer's facilities and tools were used to make the work, and whether it was made during a time period specified by the employer. Whether the employer had control over the work, perhaps in the form of input on the development and details, may potentially also be considered. Even if these factors favor or disfavor the existence of employment, it is still possible that the work may be considered to be a joint work with the putative employer. In such a situation, both the artist and the other party may have rights to possess or control the work.
Caselaw
Some notable cases that have involved creative work and a made for hire dispute included the following:
1) Community for Creative Non-Violence (CCNV) vs. Reid (1989). Artist created sculpture for non-profit organization. Later, a dispute arose regarding who owned the right to display the work (one of the exclusive rights of the copyright owner). Initially the court determined that the artist was an independent contractor instead of an employee due to the context of the work performed and the relationship between the parties. As noted above, for indepentently contracted work to be considered for hire, the physical work must of the type enumerated in the Copyright Law as such. Because sculpture is not an enumerated work the court decided that the artwork was not a work for hire. However, the court considered (but did not officially decide) that the sculpture was a joint (collaborative) work, made by both the artist and the organization. Later in mediation the parties themselves agreed to their own terms: the organization would be the sole owner of the actual physical sculpture, the artist retained rights to make 3-D copies, and that both had the right to make 2-D copies.
2) Martha Graham School and Dance Foundation Inc. v. Martha Graham Center for Contemporary Dance. Dancer/choreographer Martha Graham created works (dance/choreography) for an organization that she originally formed herself, in her own name. Later a dispute arose between Graham's heir and the organization. The issue was whether Graham personally or the organization owned the works that she created during her association with the organization. The court determined that Graham was an employee of the corporation that she created, and that the works were made in the scope of her employment. Therefore, Graham did not own the works; the organization, as the hiring party, owned them. Because of this she (her heir) did not have the right to reproduce the performances that Graham had created.
The Graham case also illustrates that care should be taken by an artist when forming corporations or other such collaborative relationships. Without a provision setting out the ownership of works, such a situation may disfavor the artist. It may be possible to mitigate the problem by making use of an employment contract that specifies (any) creative work or intellectual property to be created by the artist employee is retained (owned) by the artist personally–or the organization–depending on the situation. However, there may be corporate/personal tax considerations and other issues that should be examined as well.
Agreements
At the heart of the dispute in both of the cases above, and many work made for hire disputes, is that there was not a clear understanding about the rights to the intellectual property rights associated with the work. Despite the risk, but largely because of the practices of the industry, many artist work without written agreements. However, it is nevertheless important to have a very clear agreement about the expectation of both the artist and the employer, in regards to the intellectual property as well as the physical artwork. Ideally, this agreement should always be recorded in a writing so that both parties can refer back to it in the event that there are later disagreements, and it may also serve as important evidence in the event of a dispute. At a minimum, it is a good idea to confirm the terms of the agreement in some form, e-mail, text, or at least a written record of a verbal discussion when a written agreement is not possible. A written and signed agreement is preferrable in nearly any situation.
A contract between an artist and a hiring party may at the least define what work is to be produced and who owns it. Depending on the situation, it may be an employment agreement or an agreement to create commissioned work with the artist as an independent contractor. Such contracts may be in writing or may be oral only, but in the case of independent contractors, must be in writing to validly produce a work made for hire. Regardless, writing is clearly the preferred form, to ensure that the agreement is equally undertood by all and for the other reasons stated above. In the context of a dispute, implied agreements may also arise. That is, there may be an undertstanding between the parties although the specifics have not been outwardly expressed.
Rights and Results of Work Made for Hire
Some additional issues arise in regular employment contexts for create professionals, whether they work as freelancers or in a more traditional job. Because an artist essentially gives up all rights to the work created in this context, including the right to make derivative works, the artist cannot make any derivative works based on his or her original work, nor can he/she further profit by another's derivative works made from the same. In this sense, some creative professionals feel that they are not in an equitable bargaining position. They are paid to create one work, but the subsequent intellectual property (copyright, trademark) may gain a greater value over time, for which they are not compensated. Some artists have expressed an interest in a royalty/residual system for creative work made for hire. As support for this concept, there is the assertion that some artists are unwilling to give their best effort in making work for hire because of the fact that they will not have any rights or interests in the work created. They prefer to keep their best efforts for work they can maintain some control over. Most hiring parties (employers) are nearly certain to object to a royalty right for such work, but it may be in the interest of some industries to consider it. One state that has a very limited royalty system for artwork is California. This law does not apply to work made for hire, but the issues addressed by the California statute might be considered by professional commercial artists when considering the goals and conditions of their profession.
Notes & Resources:
Definition of Work Made for Hire in the U.S. Copyright Law (excerpt)
Factors that may be used by courts to determine scope of employment the Restatment (Second) of Agency (excerpt)
Visual Artists Rights Act
California art resale (royalty) law
CCNV v. Reid
Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. (external link, last visited October 25, 2008.)
1 Sui generis intellectual property rights are those that falls outside the categories of copyright, trademark and trade secret. Some countries have various statues that protect particular works, for example, in the United States the hull designs of vessesl are protectd by sui generis rights that pertain specifically to those objects.
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