Work for Hire: When the Writer Isn't the Author

Monday, October 13, 2014

As I promised last week, I am reprinting a post that I wrote for the “Hoosier Ink” blog on November 25, 2010.* The post, titled “When the Writer Isn’t the Author,” discusses when something is a work for hire and what the legal implications are.
One additional note. A freelancer can assign/sell/give the copyright to the person who commissioned the work even if it doesn’t qualify as a work for hire. For practical purposes, the results may be the same, but the labels are still different.
When the Writer Isn’t the Author
“I wrote it, so I get the copyright. Don’t I?”
Usually, but not always.
The author receives the copyright, but the author and the writer aren’t always the same person.
I see that puzzled look on your face, so let me explain.
Federal law gives the copyright to the author. In most cases, the person who wrote the manuscript is the author. But the definition changes if the material is what copyright law calls a “work made for hire.”**
So what is a work for hire? The law creates two categories. The first is simply “a work prepared by an employee within the scope of his or her employment.” If you are a staff journalist writing articles for the newspaper that employs you, those articles are works-for-hire. You may be the writer, but your employer is the author for copyright purposes.
How you label your relationship doesn’t matter. If you are billed as a “freelance correspondent” or an “independent contractor” but are required to work a certain number of hours every week and are paid for vacations and sick days, you are probably an employee rather than an independent contractor. It isn’t always easy to draw the line, but the more you look like a traditional employee, the more likely it is that the writing you do as part of the relationship is work for hire.
You don’t have to be an employee to create a work for hire, however. That’s because there is a second category for certain commissioned works.
To determine if a work fits into this second category, ask yourself the following three questions. If you answer “yes” to all of them, it is a work for hire and the person who commissioned it is the author. If even one answer is “no,” as the writer you are also the author.
1.  Was the work specially ordered or commissioned? In other words, did someone ask you to write it? If you did the work on assignment, it may be a work for hire. If you wrote it on your own initiative and followed a normal submission process, it is not.
2.  Was it created “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”? Magazines and newspapers are collective works. A novel is not a collective work, but a single book containing four novellas is.
3.  Have the parties signed a written agreement saying it is a work for hire?
If the material is a work for hire (either because you are an employee or because you answered all three questions in the affirmative), does that mean you can’t use it? The answer depends on your agreement with the legal author. Your employer may let you republish the material for certain purposes or under certain conditions, but ALWAYS get it in writing. The same is true for a commissioned work. See what you can negotiate, and put it in writing.
So should you enter into a work for hire arrangement? Weigh what you get out of it against what you give up and make your own call.
But don’t assume that you own it just because you wrote it.
** See 17 U.S.C. 101 and 17 U.S.C. 201(b).
The photograph shows the Office of War Information News Bureau in November 1942. Because these individuals were employees, the news articles they produced were works for hire. The photographer, Roger Smith, was also an employee, so the photograph belongs to the United States government. Because there is no copyright in U.S. government works, the photograph is in the public domain.

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