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By Purple Fox Legal

May 11, 2022

For authors, artists, and other creative people, copyright law continues to act as one of the main sources of protection. This is because, starting from the moment they come into existence, creative works are automatically protected under copyright law. There is no filing required. And, this coverage prevents others from claiming that work as their own, granting the creator original copyrights over it. 

There are some exceptions to copyright law, however, and some creative works slip through these protections. One of the main exceptions is the “Work Made for Hire” doctrine. This doctrine specifically applies to creative works that were commissioned by a buyer and shifts the focus of copyright protection away from the creator. In this article, we will discuss the Work Made for Hire doctrine, the times that it applies, and the ways to protect yourself by using it.

What is a Work Made for Hire Agreement?

A Work Made for Hire (also known as a Work for Hire or WFH) agreement applies to specific works completed as part of a job or commissioned project. Unlike typical creative projects, the copyrights over a work made for hire automatically go to the person who purchased it. And the artist doesn’t have to be an employee, either. Any works of art commissioned and paid for are subject to the Work Made for Hire doctrine and can strip the original artist from any copyright protections. 

What Does the Agreement Include?

In Work for Hire relationships, documentation is incredibly important. There should be some sort of written evidence outlining the working relationship, and protecting both parties involved. Whether the artist is a full-time employee or an independent contractor, Work for Hire agreements should be examined and signed by both parties to provide the most protection. The most important elements of a Work Made for Hire agreement include:

• The scope of the project

Your Work Made for Hire agreement should outline the project and clarify its goals. Make this section as detailed as possible. 

• The date the project is due

This date should be convenient for both parties. 

• Rights that will be relinquished 

Intellectual property rights are automatically relinquished in a Work Made for Hire agreement. The freelancer/employee should understand this. 

• Compensation for the project

An artist needs to be properly compensated for giving up their intellectual rights over a work. Payment terms should also be outlined here. 

• Confidentiality agreements

Is the artist a ghostwriter? Should they remain silent about their place in the project? Any agreements on confidentiality should be included in the agreement. 

• Arbitration agreements

What happens if a dispute does arise? Arbitration agreements can help prepare for this possibility, while also keeping the issue out of the courts.  

• How to get out of the agreement

If someone wants to sever the agreement, they should know how to do so. Most Work for Hire agreements allow either party to sever the contract at any time, and for any reason. 

When Does the Work “Made for Hire” Doctrine Apply?

There are two main instances when the Work Made for Hire doctrine comes into play. These are when:

1. The work is prepared by an employee as a scope of their employment, or
2. The work was specifically ordered or commissioned

Once a work is determined to fall under the Work for Hire doctrine, copyrights are transferred from the original creator and to the entity who purchased it. Some of the most common creative works that fall under this agreement include:

• Contributions to a collective work
• Supplementary works (ie: illustrations for a book)
• Audiovisual works
• Translations
• Instructional texts

Protect Yourself with a Secure Agreement

In 2015, the Work Made for Hire doctrine made headlines when the copyrights to a popular board game were challenged. The Game of Life, owned and produced by Hasboro Inc, was suddenly an object of dispute after a widow filed a lawsuit claiming copyrights over it. The lawsuit asserted that Bill Markham, the petitioner’s late husband, was the one who designed the game and that his estate would be reclaiming copyrights over it.   

However, after legal examination and an appeal, it was determined that Markham’s estate possessed no rights over The Game of Life. While it was true that Bill designed the game in 1959, he did so under a work for hire agreement with businessman Reuben Klamer. Because of this, any intellectual property rights he may have held over the board game had been relinquished. 

Concluding Thoughts

Although the Work Made for Hire doctrine seems simple and straightforward, navigating this agreement in the real world can be more complex. It’s important for your agreement to cover the entire scope of your project, and to include protection clauses for both parties. 

Those with any questions or concerns about the Work for Hire doctrine, or their individual contract, should contact an experienced attorney for guidance. Purple Fox Legal can help. Contact us today to learn more.