As discussed in Part 1, understanding the application of the Copyright Act’s works made for hire doctrine is needed to protect an organization’s intellectual property. Specifically, the application of the doctrine to specially commissioned works has important nuances that legal and business teams should consider.

Specially Commissioned Analysis

To qualify as a “specially commissioned” work made for hire under the Copyright Act, the following elements must be met:

• The work must be specially ordered or commissioned by the commissioning (i.e., hiring) party
• The parties agreed in a writing that the work was a work made for hire
• The work falls within one of the nine statutory categories

To be “specially ordered or commissioned,” the hiring party must have been a motivating factor behind the creation of the work, but complete artistic control over the work is not required to satisfy this element.   

In addition, both parties must sign a writing that states that the contemplated work is a work made for hire. While the Copyright Act does not require any specific wording to trigger ownership (e.g., “work made for hire”), it must be clear in the agreement that the hiring party will be the owner of the copyright. But the timing of the writing is subject to disagreement among courts. Some courts require the writing to be executed before the work’s creation, while others allow the writing post-creation.

Finally, the Copyright Act specifies the following nine categories, only one of which the work must fall within to qualify as a specially commissioned work made for hire:

• A contribution to a collective work
• A part of a motion picture or other audiovisual work
• A translation
• A supplementary work
• A compilation
• An instructional text
• A test
• Answer material for a test
• An atlas

If a work fails to meet any of the above criteria, then it is not a work made for hire under the Copyright Act. Even if the writing for the work explicitly specifies that the work meets one of these categories, the writing itself is not relevant to or considered in a court’s analysis of whether a work actually falls within the category. 

General Implications

A work constituting a work made for hire (or not) under the Copyright Act has some implications that warrant consideration. First, if the work is deemed a work made for hire, the author and owner is the employer (or hiring party), and the creator (i.e., employee or independent contractor) has no exclusive rights in the work, such as the right to reproduce, make derivative works, or distribute copies of the work.

Second, the employee or independent contractor has no termination rights in the work; under the act, authors (or their heirs) have the right to terminate a previous assignment and reclaim their copyright 35 years after assigning the copyright to another party.

And third, the duration of the copyright would not be based on the employee’s or independent contractor’s lifespan, but rather, would be based on corporate authors under the act.