Businesses, individuals and organizations often hire people to create work for them. It is important that the business, individual or organization that is hiring someone else to create a written or artistic work on their behalf enter a valid work for hire agreement prior to commencing the project.
A work for hire agreement allows the business, individual or organization who is doing the hiring to own the work that is created. This is an exception to the general rule in the United States that the author or creator of a work retains ownership rights to that work.
The United States Copyright Act of 1976 explains that “work made for hire" (also known as work for hire or WFH) can be created in one of two ways. First, work for hire is established if the work is created by an employee acting within the scope of his employment. In that case the intellectual property or work created by the employee is owned by the employer. Second, work for hire is established if an independent contractor created a work that is specially ordered or commissioned, is within a category recognized as valid for work for hire (such as writing) and the independent contractor and the party ordering or commissioning the work have signed a written agreement describing the work as work for hire.
It is critical for a party who is commissioning or ordering a work to create a valid work for hire agreement in order to be able to use the work that is created. The party who is paying for the work to be created is entitled to copyright the work for the shorter of 95 years from the date of publication or 120 years from the date of creation.
In the absence of a work for hire agreement, there may be confusion about how each party can use the work that was created. This confusion can create significant legal and financial problems for both parties. Therefore, it is important to enter a valid and enforceable work for hire agreement prior to commissioning or specially ordering work to be performed on your behalf. Once this type of work has been created absent a work for hire agreement, an assignment of rights may be needed in order to transfer the copyright interests over to the party who commissioned the work. When in doubt, seek the advice of an intellectual property professional to ensure that you understand your rights.