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 What Is a Work For Hire Clause?

A copyright is a right to prevent others from using originally authored work. Copyright law is similar to trademark law, which addresses logos and brand names in order to protect inventions. The item or work that is to be copyrighted should be an original, and not a reproduction or copy of property that has already been copyrighted.

According to federal copyright law, a copyright entitles the work’s owner to many exclusive rights. A few examples of such rights include, but may not be limited to, the right to:

  • Reproduce their copyrighted work as they wish;
  • Distribute copies of their copyrighted work to the public for sale purposes;
  • Perform the copyrighted work, such as public readings or musical performances;
  • Produce a license derivative of other copyright works; and
  • Licensing rights in order to manufacture and produce a product.

Copyrights can be used to protect many different types of creative work, such as:

  • Recorded music;
  • Sheet music;
  • Books, novels, poems, and essays;
  • Software codes, video games, and CD-ROMs; and
  • Works of art, including but not limited to paintings, plays, musicals, dance choreography, and sculptures.

In copyright law, a work for hire is a work that is subject to copyright. The actual term “work for hire” is a statutory term and refers to a work created by an employee as part of their job. The term can also refer to limited works in which all parties agree to the designation. This agreement must be made in writing. Because the term is defined statutorily, a work for hire is not created simply due to the fact that the parties to an agreement have stated that the work is a work for hire.

A work for hire clause is commonly included in employment contracts, and entitles employers to own all ideas, innovations, and discoveries made by their employee. Such ownership is considered to be essential in order to possess copyrights for the items created.

When Does an Invention Qualify For a Work For Hire Clause? How Is It Proved That an Employee or Independent Contractor Was Hired?

There are several factors that an employer must prove in order to gain ownership, or title, of an employee’s invention. Some examples of these qualifications are that:

  • The work was created by an employee of the company, or an independent contractor that was hired by the employer for this specific job;
  • The work was specifically ordered or commissioned by the employer;
  • The work is covered by a statutory category that otherwise classifies the work as a “work for hire”; and
  • All parties understood that the work was to be “work for hire.”

Some works may be created by an independent contractor. In terms of work ownership, the law is fairly straightforward in that the independent contractor generally owns the rights to their own work. What this means is that they generally have ownership rights to any work that they have created, even when that work is created for someone else.

An exception to this would be if the contractor and the employer have signed a written agreement, specifying that the employer is the owner of any and all works created by the contractor for that specific job. This would be an example of a work for hire clause.

Generally speaking, an employment agreement or other registration form will be enough to prove the employee or independent contractor’s start date. This would need to be signed by both parties upon hiring or contracting. If the work’s creator was not an employee, or otherwise contracted by the employer at the time of the work’s development, the employer does not have any sort of claim on the creator’s invention.

What Does It Mean For an Employer To Specially Order Or Commission Work?

Simply put, this means that the invention in question was created during the creator’s employment. Any proof that is associated with demonstrating that the work was specially ordered or commissioned shows that an employee was to create the work as part of their employment. As such, that makes it the product of the employer.

If an employee created the work as a hobby, or outside of the scope of their employment, the employer has no claim of ownership over the invention. Legal issues commonly arise in association with this, usually due to the fact that an employee may have created the work outside of employment but by using company resources to assist in the creation of the invention.

What Are the Statutory Categories That The Invention Must Fall Under?

As previously mentioned, the term “work for hire” is a statutorily defined term. Most specifically, it is defined under 17 U.S.C., section 101. Statutory categories are limits on exactly what type of work an employer is allowed to specially order or commission, while still retaining ownership of what was ordered or commissioned. Some examples of these categories include, but may not be limited to:

  • Contribution to a collective work;
  • Part of a motion picture;
  • Part of other audiovisual work;
  • Translations;
  • Supplementary work;
  • Compilations;
  • Instructional text;
  • Tests and answering materials; and
  • An atlas.

If the creation in question does not fall under one of these statutory categories, it cannot legally be considered a work for hire. As such, the employer will lose any and all claims of ownership to the creation.

How Can Work Be Understood To Be Work For Hire?

Generally speaking, “work for hire” as a classification is provided by signed standardized forms. Terminology associated with work for hire can also be included in an employment contract, as a condition of general employment. This would cover any work completed by the creator while they are considered to be an employee, or any work related to specific projects that the creator will be expected to engage with as part of their employment.

There is specific language which must be used in connection with the “work for hire” classification. An example of this would be how the clause may state, “All employment-related work created by the employee over the course of their employment is property of the company.” Additionally, agreements must be expressly made, and all involved parties must understand what exactly it is that they are agreeing to. The employer would have no claim of ownership if no such form or language has been used.

Disputes and other matters associated with work for hire mirror those associated with work product disputes. In employment settings, “work product” refers to anything created by an employee that becomes property of the employer, under certain conditions. As you can see, this definition is very close to that of work for hire.

Some specific, common examples of work product include:

  • Clothing designs;
  • Beverage formulas; and
  • Food recipes created by an employee, that are then owned by their employer once the work has been completed.

Do I Need an Employment Attorney For Issues Involving Work For Hire Clauses?

If you are being asked to sign a contract containing a work for hire clause, you should consult with an experienced and local employment contract attorney prior to doing so. A local lawyer will be best suited to helping you understand your state’s specific laws regarding the matter, and can provide you with the most relevant legal advice based on the specifics of your case.

Additionally, an experienced employment attorney can help you determine whether it would be in your best interests to sign a work for hire clause, and can help you negotiate the terms of a contract. Finally, an attorney will also be able to represent you in court, as needed, should any legal issues arise.


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