The “Work Made for Hire” Misunderstanding (I Paid for It, So It’s NOT Copyright Infringement, RIGHT!?)
Have you ever hired a photographer to take a family portrait or capture the highlights of a wedding reception? Or maybe you paid a graphic designer to create a new logo for your business or new product line? Maybe you paid an artist to paint a pet portrait of your favorite dog or a musician to compose a song celebrating a loved one? Or maybe you hired a developer to build out and design your new website?
Wedding Reception
Website Design
If any of the above fact scenarios sound familiar, then you may have said to yourself, “I paid for it, so I can do with it whatever I want.” Or maybe you thought, “How can it possibly be copyright infringement when I paid for the work?” While these are the likely presumptions you might reach in the above-described scenarios, they are usually not the correct legal conclusions under the widely misunderstood “work for hire” doctrine.
Copyright Protection – In General
In the United States, copyrights protect any original work of authorship fixed in a tangible medium. So if the photographs of your family portrait or wedding reception, or the logo for your business or product line, or your website content is sufficiently original, they are entitled to copyright protection as soon as they are fixed in a tangible medium. In these scenarios, the tangible media may include both physical and digital formats. Under U.S. law, the owner of a copyright has the exclusive right to reproduce, distribute, display, perform, and/or prepare derivative works of the copyrighted work.[i]
Copyright Ownership – In General
The general rule of thumb is that the owner of the exclusive rights conferred under U.S. copyright law is the author of the original work. As a result, in the above-described scenarios, the owners of the exclusive rights to reproduce, distribute, display, perform, and/or prepare derivative works of the copyrighted works are usually the photographer, the graphic designer, the painter, the songwriter, and the website developer, respectively.
The “Work Made for Hire” Exception
An exception to the general rule relating to copyright ownership is commonly referred to as the “work for hire” or “work made for hire” doctrine. Despite widespread misconceptions, the “work for hire” doctrine sets forth two narrowly-defined carve-outs to the general rule of copyright author ownership. The first carve-out is for original works fixed in a tangible medium which are created by employees in the scope of their employment. If an employee creates an original work in the scope of his or her employment, then the employer, not the employee-author, owns the copyright to the work under the “work made for hire” exception to the general copyright author ownership rule.
The second carve-out is for specially-ordered or commissioned work created by non-employees such as freelance photographers, graphic designers, artists, musicians, and website developers. However, under this second carve-out, only works that fit into one of the nine (9) enumerated categories of works under the statute [ii] are exempt from the general rule of copyright author ownership. And the nine (9) enumerated categories of works under the statute are probably not the types of works that you are likely to commission a freelancer to create for you anytime soon.[iii] To illustrate, none of the fact scenarios set out at the opening of this article would fit into any of the nine (9) enumerated categories excepted from the general rule of copyright author ownership. So, if you merely paid someone to produce any of the works described in the fact scenarios set out at the beginning of this article, the works are probably not “works for hire” under U.S. law, and the author of those works likely retains the exclusive right to reproduce, distribute, display, perform, and/or prepare derivative works of the copyrighted work. In the end, unless you hire someone to produce a work in one of the nine (9) relatively obscure categories, then the second carve-out provides you with no relief from the general rule of copyright author ownership.
And to add insult to injury, even if your work does surprisingly fit into one of those nine (9) enumerated categories, you’re still not exempt from the general rule unless you have a written agreement with the author of the work stating that the work is a “work for hire.” In the end, the widely misunderstood “work made for hire” doctrine simply does not mean that you own the copyrights to an original work merely because you paid for it.
The “Fair Use” Defense
So what can you do to avoid exposing yourself to copyright infringement liability to an author who was duly compensated for creating a copyrighted work? The first thing you should probably do is contact an experienced copyright attorney to discuss what you intend to do with the original work you are hiring the author to create. It may very well be that your intended use of the original work constitutes a “fair use”[iv] of the copyrighted work, and as such, you will not be exposing yourself to liability for copyright infringement. However, it is also possible that what you think is a permissible use of the copyrighted work is not a legally-recognized “fair use” of the copyrighted work and will expose you to liability for copyright infringement. Because the determination of whether an otherwise unauthorized use constitutes a “fair use” is a complex, fact-intensive legal analysis, an experienced copyright attorney should be consulted. Similarly, if an intended use does not constitute a “fair use” under U.S. law, an experienced copyright attorney can advise you on different ways in which exposure to copyright infringement liability can be avoided, regardless of your intended use of the work.
If you have any questions about whether an original work you paid for or are thinking about purchasing is a “work for hire,” whether your intended use is a “fair use” of the original work, or any other issues relating to copyright ownership, please contact Paul at paul@brightwiselaw.com.
[i] The exclusive rights conferred to the copyright owner depend upon the nature of the copyrighted work as set forth in 17 U.S.C. § 106.
[ii] The nine (9) categories of works enumerated in 17 U.S.C. § 101 include a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructive text, a test, answer material for a test, and an atlas.
[iii] It still boggles my mind to think that the nine (9) categories of works that ultimately made it into the U.S. Code are the ones that survived the legislative process, but uncovering that mystery would probably require a team of full-time, professional investigative journalists.
[iv] See the FAQs page of this website at www.brightwiselaw.com/faqs for additional details relating to the “fair use” doctrine under copyright law.
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