| If you are commissioning someone to work on a project for you, are not a traditional employer, and yet want to retain all rights to the work created, it becomes important to understand “work for hire” agreements.
In a general employer employee relationship, the employer owns all rights to the work created by employee. In cases where freelance work is involved, the general rule is that the person who actually creates the work is the legally recognized author of the work. “Work for hire” is an exception to that rule. According to copyright law in the United States as well as some other copyright jurisdictions, if a work is “made for hire,” the employer as opposed to the employee is considered the legal author. A work will be considered “made for hire” so long as the following conditions are met: 1) before commencement of work, 2) all parties agree in writing to the Work for Hire designation, and 3) the work meets statutory requirements.
By just calling something a “work for hire” in an agreement does not make it so, unless it falls within these specified categories of works. Works created by independent contractors, such as consultants or freelance artists, the “work for hire” doctrine only applies to certain types of works under federal law, and these works do not necessarily include software or logos. A “work for hire” is defined in the Copyright Act (15 U.S.C. § 101) as “a work specially ordered or commissioned for use as a contribution to a collective work, as a 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 answer material for a test, or as an atlas.” The statute very narrowly defines works created by independent contractors that can constitute “work for hire.” While some software programs may be considered an “audiovisual work,” other software programs would not. And whether a graphic logo is covered or not could depend on how it is used.