A work for hire clause is a common part of employment contracts. This clause entitles employers to take ownership of all ideas, innovations, and discoveries made by the employee. Such ownership is essential in order to possess copyrights for the items.

When Does an Invention to Fall under the Work for Hire Clause?

The factors that an employer must prove to gain ownership, or title, of an employee’s invention are:

  • The work was created by an employee or an independent contractor hired by the employer
  • The work was specially ordered or commissioned by the employer
  • The work falls under a statutory category that otherwise classifies it as a "work for hire"
  • The work was understood by all parties to be "work for hire"

Proving That an Employee or Independent Contractor Was Hired

Usually, an employment agreement or other registration form that was signed by both parties upon hiring or contracting will be sufficient to prove the employee or independent contractor’s start date. If a person was not an employee or otherwise contracted by the employer at the time the person developed the work, the employer has no possible claim on the invention.

What Does It Mean for an Employer to Specially Order or Commission Work?

This simply means that the invention in question was created in the course of the person’s employment. Any proof related to demonstrating that the work was specially ordered or commissioned shows that an employee was supposed to create the work as part of their job, thus making it the product of the employer. If an employee created the invention as a hobby or outside the scope of employment, then the employer will have no claim to ownership. Trouble frequently arises in this area because an employee may have created the invention outside of employment but used company resources to aid in the development of the invention. 

What Are the Statutory Categories That the Work Must Fall Under?

The statutory categories are limits on what type of work an employer can specially order or commission and still gain ownership. These categories include:

  • Contribution to a collective work
  • Part of a motion picture or other audiovisual work
  • A translation
  • Supplementary work
  • A compilation
  • An instructional text
  • A test
  • Answer material for a test
  • An atlas

If the work in question does not fall under one of these categories, it cannot be considered a work for hire and the employer will lose any claim of ownership for the work.

How Can Work Be Understood to Be “Work for Hire”?

The "work for hire" classification is usually provided by signed standard forms. Work for hire terminology may also be included in an employment contract as a condition of general employment, which would encompass any work done by the person while they are an employee, or relating to specific projects that the employee will be expected to engaged in as part of their employment. Specific language must be used in connection with the "work for hire" classification, agreements must be made expressly, and all parties must understand what is being agreed to. If no such form or terminology has been used, then the employer has no claim of ownership.

Do I Need an Employment Attorney for Help?

Copyright issues are a source of great friction between employers and employees, especially if the invention or work in question may be worth a great deal of money. Consult an employment attorney if you have questions or would like relief from this problem.