UNDERSTANDING WORK FOR HIRE ("WFH")
Under the U.S. Copyright Act of 1976 (effective January 1, 1978)
There are 3 ways to own a copyright in a work:
1) create a work as author;
2) acquire it by an assignment (or sale) of the work; or
3) own it as a work made for hire ("WFH")
To understand WFH, you must first understand the basics of U.S. copyright law.
Copyright vests in an author and attaches automatically upon the creation of an original work and
fixation of that work in a tangible form. So as the author, you can't just hum the tune in your
head, you must record it or write out the sheet music for common law copyright to attach.
Owning a copyright gives you a bundle of exclusive rights in a work, such as to publish;
perform; distribute; broadcast; and license a work. In the case of a WFH however, the
author of the work for legal purposes is not the actual creator, but someone (or something
else in the case of a legal business entity) who has effectively commissioned the work, called the Employer For Hire.
A Work For Hire is created in one of two ways:
1) an employer owns the copyright as a WFH when the work was created by an employee in
the course of his or her employment; or
2) an independent contractor signs a written agreement with a third party prior to the
work's creation, granting that third party the right to be the author for legal purposes.
RememberóCopyright attaches upon creation and fixation, so in order to short-circuit that
automatic conferring of rights, you must sign the contract BEFORE creation and fixation, or it's
too late! To be effective, the written agreement must have certain "magic legal language"
which confers this right to be a WFH. The WFH employer or legal author is not obligated to
publicly disclose who the original creator was, although this is sometimes negotiated. Most
often in the entertainment industry credit is in fact given, while most often in corporate
business credit is not given.
9 TYPES of Works ONLY! There are only nine types of works which qualify as a
1) contribution to a collection;
2) motion picture or other audiovisual work;
6) instructional text;
8) test answers; and
But waitówhere's MUSIC on that list?! Well it's NOT on the list! A musical composition can
NOT be a WFH. It can only be later assigned to a third party. That was a public policy decision
made to protect a historically unprotected class of people who were taken advantage of
(songwriters in the music industry). There is also a whole separate royalty right known as
performance royalties (paid by ASCAP, BMI or SESAC) that the original author of a
musical work receives by virtue of being the AUTHOR, that cannot be contracted away. Thus
you cannot contract away your right to be that author and thus receive those royalties.
DURATION of Copyright
The duration of a copyright in a work created under the 1976 Act is generally the life of an
author plus 70 years ("Life Plus 70").
However, for a WORK FOR HIRE (and also for an anonymous work or a pseudonymous work)
the copyright endures for a term of 95 years from the year of its first publication, or a
term of 120 years from the year of its creation, whichever expires first.
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