The Doctrine of Work For Hire is a notion in intellectual property law. This idea of work for hire is recognized in American law under Section 101 of the Copyright Act. Whenever we stumble upon a book, song, or work of art, we often tend to jump the gun and conclude that the creator has the rights of their creation,… Read More »

The Doctrine of Work For Hire is a notion in intellectual property law. This idea of work for hire is recognized in American law under Section 101 of the Copyright Act. Whenever we stumble upon a book, song, or work of art, we often tend to jump the gun and conclude that the creator has the rights of their creation, but the rights may not always belong to the creators. Those Rights are frequently (but not always) held by publications/labels etc. The doctrine of work for hire is...

The Doctrine of Work For Hire is a notion in intellectual property law. This idea of work for hire is recognized in American law under Section 101 of the Copyright Act. Whenever we stumble upon a book, song, or work of art, we often tend to jump the gun and conclude that the creator has the rights of their creation, but the rights may not always belong to the creators. Those Rights are frequently (but not always) held by publications/labels etc.

The doctrine of work for hire is basically “works made for hire.” If a work is made for hire, an employer is deemed as the author even if the work was created by an employee. This employer can be a company, a group, or an individual. This doctrine came into enforcement after the Copyright Act of 1976. This article attempts to analyze the doctrine of work for hire and its interpretation by the court.

I. Definition and Provisions of work for hire

Before the 1976 Act, copyright was governed by the Copyright Act of 1909. Unless the parties agreed otherwise, the copyright ownership assumption under the 1909 Act identified a commercial work as work done for hire. In contrast to the 1909 act, the 1976 act only considers work made for hire when the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, only then the employer can claim the work made for hire. It is assumed that the creator owns all rights in the absence of a documented agreement.

The 17 U.S. Code § 201(b), defines Works Made for Hire as “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright”[1].

Section 101 of the Copyright Act (Title 17 of the United States Code) divides a “work made for hire” into two parts:

  1. a work formulated by an employee within the scope of his or her employment, or
  2. work specially ordered or commissioned for use[2]
    • as a contribution to a collective work,
    • as a part of a motion picture or other audio-visual work,
    • as a translation,
    • as a supplementary work,
    • as a compilation,
    • as an instructional text- The basic characteristic of “instructional texts” is the purpose of their preparation for “use in systematic instructional activities,” and they are to be distinguished from works prepared for use by a general readership.

It is essential to understand that the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire for an employer to claim it as his creation.

One of the fundamental issues was determining how to establish a statutory boundary between works prepared on special order or commission that should be regarded as “works are done for hire” and those that should not. As a result of this disagreement, the drafters of the 1976 Act included § 201(c), which recognized that expressly ordered or commissioned works could only be regarded as works made for hire “under particular conditions[3].”

In such cases, the parties must specifically agree that the work should be deemed a work made for hire, and the work must fall into one of the statutory definition’s stated categories. If the work meets both sections of the second point, it is work done for hire.

Contributions to Collective Works (Section 201(c)) —Copyright in individual contribution to a collective work is distinct from copyright in the collective work as a whole and originally resides in the author of the contribution. In the absence of an express transfer of the copyright or any rights under it, the owner of the copyright in the collective work is presumed to have acquired only the right to reproduce and distribute the contribution as part of that particular collective work, any revision of that collective work, and any subsequent collective work in the same series[4].

Software is usually classified as “collaborative work.” This category includes different works that are combined to form a whole, resulting in the creation of another work. Section 201(c)‘s presumption is fully consistent with current law and practice, and it provides a fair balance of equities. At the same time, the last phrase of the subsection, which presumes the right to repost the contribution under certain limited situations, is an important contribution to the basic presumption[5].

II. Court Interpretation

The Supreme Court’s ruling in Community for Creative Nonviolence v. Reed addressed that definition. The Court ruled that it is necessary to first determine whether work was prepared by an employee or an independent contractor. If the work was created by an employee, part 1 of the definition of section 101 applies, and the work has generally been deemed a work made for hire.

However, the definition’s use of the term “employee” departs from the conventional interpretation of the term. For the purposes of copyright, “employee” refers to an employee as defined under the general common law of agency. When we come across the subheading “Agency Law” underneath. Part 2 of the term in section 101 applies if the work was developed by an independent contractor and was “specially ordered or commissioned.”

Under the broad common law of agency, an “independent contractor” is someone who is not an employee. A work created by an independent contractor can be considered work made for hire if

  1. it falls into one of the nine types of works described in part 2 in sec 101 and
  2. there is a written agreement between the parties declaring that the work is a work made for hire[6].

Interpretation of the term “Employee”

For the 1976 Act, four factors have been employed to assess whether the creator is an employee: actual employee; right to control; actual control; and agency. If the creator is determined to be an employee under the standard applied by the court and the work is within the scope of the employee’s employment, the employer will possess the copyright. Otherwise, the employer will possess the copyright only if the work falls into one of the statutory categories and is recognized in a contractual agreement as “work done for hire.”

i. Actual employee Test – The court followed the “actual employee” approach in May v. Morganelli-Heumann & Associates. Because the court regarded an architect as an independent contractor rather than an employee, only the “specially ordered or commissioned” element of the work produced for hire definition could apply to make the job work done for hire[7]. Because there was no formal agreement and the work did not fall into one of the stated categories, the architect would own the copyright under the 1976 Act.

ii. The Agency Law Test – This standard was adopted by the Fifth Circuit in the Easter Seal Socy case and Crippled Children & Adults, Inc. v. Playboy Enterprises because it: (1) made sense of the commissioned works classifications in 101(2); (2) linked the meaning of “work made for hire” with a very well doctrine in agency law; (3) increased predictability; and (4) created a “moral symmetry” with other areas of the law, such as the employer being culpable under the respondent relatively risky theory[8].

iii. The Actual Control Test – The “actual control” test necessitates the commissioning party’s participation in the creative process. If actual control and participation are established, the commissioning party and the creator are regarded to be in an employer/employee relationship, and copyright ownership is transferred to the employee[9].

In the case of Aldon Accessories v. Spiegel, Inc. The court determined that an employer/employee relationship existed since the employer actively directed the work and exercised actual control, although the independent contractor who built the statuette was not the plaintiff’s “regular or formal” employee [10].

iv. The Formal, Salaried Employee Test – was used by the court in Dumas v. Gommerman to settle a disagreement over copyright ownership in a series of lithographs. To understand its definition, the usual sense of the term employee was used, which includes regular payment of salary, withholding of taxes, and so on. The Ninth Circuit reasoned that by defining employees as “formal, salaried employees,” there would be minimal disagreements about the hired party’s position. The Ninth Circuit objected to the “agency” test because it incorporated the “actual control” standards and made it impossible to identify whether the hired person was an employee or independent contractor order.


[1]17 U.S. Code § 201

[2] 17 U.S. Code § 101

[3] Roberts J, ‘WORK MADE FOR HIRE: The Fiction, The Reality and The Impact Upon Software Development’ (Jolt.law.harvard.edu, 1968) Available Here accessed 9 August 2021

[4] 17 U.S. Code § 201

[5] ‘[USC02] 17 USC Ch. 2: COPYRIGHT OWNERSHIP AND TRANSFER’ (Uscode.house.gov, 1968) Available Here accessed 9 August 2021

[6] ‘Works Made for Hire’ (Copyright.gov, 2012) Available Here accessed 9 August 2021

[7] Cliff May v. Morganelli-Heumann & Associates, 618 F.2d 1363 (9th Cir. 1980)

[8] Easter Seal Socy case. Crippled Children & Adults, Inc. v. Playboy Enters 532 So. 2d 1390 (1988)

[9] Vacca, Ryan G., “Work Made for Hire – Analysing the Multifactor Balancing Test” (2015). Akron Law Publications. 226. Available Here

[10] Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir. 1984)


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Updated On 2021-08-24T11:15:15+05:30
Pranava Pishati

Pranava Pishati

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