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Intellectual Property and the Arts

Work for Hire

This is the eighth in a series of articles sponsored by the CAA Committee on Intellectual Property (CIP), in which a hypothetical question is posed on some aspect of rights, permissions, fair use, and related topics. We provide a short answer on the legal aspects of the question, followed by commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific questions, please contact an intellectual-property attorney.

Q: I’m a freelance artist. I was hired by an organization to create original artworks—a wall mural and a poster—for its facilities. The organization says it can make copies of these artworks for sale without my permission because I created the art as “work-for-hire.“ I thought this was only true if I was an employee of the organization—but I’m not. What is work for hire? Is the organization right? Did I lose my copyright? Can I get it back?

A: Before we get to the details of “work for hire,” the answers to your second and third questions are straightforward: Absent an express written assignment of your copyrights to the organization, you retain all of the copyrights, and the organization would be violating your rights if it made copies of your works for sale. You didn’t mention any such agreement. Because you were not an employee and because the mural and poster are not the types of works that the Copyright Act of 1976 says may be “works made for hire,” the organization is simply wrong.

To begin from first principles, in the United States today an artist automatically acquires copyright to his or her work when it is expressed in a concrete form—“fixed in tangible form” is the formal term. The artist thus owns the copyright and is entitled to exploit it. He or she is entitled to all financial benefits from licensing or reproduction of the work and has the exclusive right to authorize others to do so.

A work that is made for hire is an exception to this general rule. The Copyright Act recognizes two different types of works made for hire. One is a “work prepared by an employee within the scope of his or her employment.” Copyrights for this kind of work belong to the employer, not the artist. No written agreement is required, and the artist need not be a full-time employee. The basic understanding here is that the employer is, in effect, “author” of work made under the employer’s supervision and control and is thus entitled to copyright.

The second type of work made for hire is a work that is “specially ordered or commissioned for use” if the work falls within one of the nine categories specified in the statute and if the artist (or other author) has an express written agreement with the commissioning party that the work is considered a work made for hire. The specified categories do not include stand-alone artworks (murals or posters), so your art could not fall within this type of work made for hire.

However, works that are commissioned for use “as a contribution to a collective work”—such as a set of posters that are intended to be seen as a single work (which is one of the nine categories in the statute)—are eligible to be treated as works made for hire, assuming that the written-agreement requirement is also satisfied. Finally, to get around the statutory limitation on the very limited types of works that may be eligible for work-for-hire treatment, commissioning parties may insist that the artist, instead, by express written agreement, assign all of his or her rights, or grant copyright licenses, to them.

Let’s turn back to the first type of work made for hire. It may be difficult to determine, in some circumstances, whether the artist is, in fact, an “employee” or is working on an independent, freelance basis. The courts have used various factors to distinguish between employees, on the one hand, and independent contractors, on the other. Among these are:

  • Manner of payment (employees usually receive a salary from which payroll taxes are deducted, while freelancers frequently receive a flat fee).
  • Degree of supervision and control exercised by the employer.
  • Skill required to execute the work.
  • A written agreement stating that the art will be considered a work for hire.

In addition to copyright, visual artists forfeit another set of rights in work-for-hire production. In 1991, Congress passed the Visual Artists Rights Act (VARA), which affirms an artist’s moral right to the continued physical integrity of his or her work after sale. VARA also grants artists the right to have their names associated with their work and only their work and to prevent their names from being associated with their work should it be distorted, mutilated, or modified by someone else. (See www.collegeart.org/ip/qa5.html) These rights, however, do not apply to any artwork created under a work-for-hire arrangement.

CIP Commentary

The logic behind the work-for-hire doctrine in copyright law rests on common-law conceptions of employee as servant and employer as master. Since the employer/master directs and controls what the employee/servant produces, the employer is positioned as the active, creative agent who can rightfully lay claim to servant output, including copyright, a legal form of property. This convention supports the employer’s ownership rights in work-for-hire relationships and allows corporations such as Disney or Microsoft to claim copyrights for work produced by individual artists or writers of computer code. Under the terms of the 1998 Copyright Term Extension Act, corporate copyrights last for 120 years from date of the work’s creation or 95 years from date of publication (basically, the time the work is first available to an audience). Copyrights for individual authors, in contrast, extend only 70 years beyond the author’s death. Artists paid to create work that may be profitably copied (many photographers and designers, for example) are well advised to document their status as independent contractors if they are not, in fact, employees.

The work-for-hire doctrine is an important issue for many freelance artists; art historians and other scholars may soon join their company. Universities have begun to identify a much wider range of work as “prepared by an employee within the scope of his or her employment.” Some universities (though not most) appear to be claiming that some “knowledge products,” such as websites and online course materials authored by faculty are works made for hire that belong to the universities. University-based scholars who produce profitable publications have been asked to share royalties with their employers. Familiarity with the legalities of work-for-hire relationships, therefore, should be an increasingly compelling goal for a broad range of CAA constituents.

Rules of Thumb

  • Remember that the work-for-hire doctrine in copyright law shifts ownership of intellectual property from creator to employer or the commissioning party.
  • The distinction between a work-for-hire employee and freelance producer is not always clear-cut. Be certain that all parties agree on your status before you begin work.
  • Don’t rely on oral agreements. Ask for explicit written contracts that spell out the terms of artist/employer or artist/patron relationships, including ownership of copyrights.

Originally published in CAA News 30, no. 3 (May 2005): 14–15.

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