What are we
talking about when we talk about a work made for hire, also known as a work for
hire? Basically, we are talking about work made by an employee for an employer,
or a written agreement to create work specifically made by one party for a
commissioning party that falls into one of the categories established in the 1976
Copyright Act. Under the work made for hire doctrine, the employer or the commissioning
party are considered the authors of the work.
The 1976 Copyright
Act defines a work made for hire as “(1) a work prepared by an employee within
the scope of his or her employment; or (2) a work specially ordered or
commissioned for use as a contribution to a collective work, as a part of a
motion picture or other audiovisual work, as a translation, as a supplementary
work, as a compilation, as an instructional text, as a test, as answer material
for a test, or as an atlas, if the parties expressly agree in a written
instrument signed by them that the work shall be considered a work made for
hire. For the purpose of the foregoing sentence, a “supplementary work” is a
work prepared for publication as a secondary adjunct to a work by another
author for the purpose of introducing, concluding, illustrating, explaining,
revising, commenting upon, or assisting in the use of the other work, such as
forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial
notes, musical arrangements, answer material for tests, bibliographies,
appendixes, and indexes, and an “instructional text” is a literary, pictorial,
or graphic work prepared for publication and with the purpose of use in systematic
instructional activities.”[1]
Later in the Act, it further adds that “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.”[2]
Under the Act, there are two ways that a copyright
eligible work that you create might belong to another: (1) if you are an
employee, and it relates to and was made during your employment, or (2) if you
entered into a work made for hire agreement and it falls into one of the nine categories
listed above.
If you are a creator, you need to be aware of the work
made for hire doctrine and how it impacts you. First, if you are working as an
employee for an employer, or in a relationship that can be categorized as an employer-employee
relationship, then any work you create that is related to your employment or is
created for the benefit of your employer will be considered work made for hire.
This means that your employer will be treated as the author of the work for
copyright purposes. Second, if you are hired to work on someone else’s work, it
could be considered a work made for hire if you have entered into an agreement
stating such, and if the work falls into one of the nine categories listed
above. In both of these instances, your copyrightable contributions to the work
will be considered to be owned by the person paying you.
At this time, it is not clear that non-employee
contributions to comic books fall under the work made for hire doctrine. If
they do, it would be under the collective work provision, and this is the
approach typically taken by the major publishers like DC and Marvel. The Act
defines a collective work as “a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate and
independent works in themselves, are assembled into a collective whole.” As you
can see from the definition, it is possible that the work someone contributes
to a comic book would not fall under the work made for hire doctrine. In order
to protect themselves and their intellectual property, the major publishers
also include language in their agreements requiring the freelancer to assign
any and all rights they may in contributions to the comic book to the
publisher. While this is a good alternative solution, it is not as ideal for
the publisher. If the work is a work made for hire, then the publisher owns the
copyright rights outright. However, if it is an assignment, then the Copyright
Act has a provision that would allow creators to reclaim copyright assignments
after 35 years.[3]
Obviously, this is something a publisher would prefer to avoid.
If you want to create a comic book, then you also need
to make sure you understand the work made for hire doctrine, and how it might impact
your rights. For instance, if you want to hire a freelancer to work on your
comic book, then you would need to have her sign a work made for hire agreement
in order to prevent her from obtaining any copyright interests in your book. This
agreement should have a provision stating that she is entering a work made for hire
agreement, and that all contributions she makes to the work will belong to you.
Additionally, in order to further protect your work, it should also include
language assigning all of her possible rights in her work to you. This should
prevent the freelancer from unintentionally gaining a copyright interest in her
contribution to your work. Obviously, if you want the freelancer to have a
copyright interest in her contributions to her work, then a different
contractual approach should be taken.
If you are being hired to work on someone’s comic
book, then the reverse of the above situation would apply. When you are hired
to work on someone else’s comic book, they should have you sign a contract. If
they do not have you sign an agreement, then you might be able to claim a
copyright interest in your contributions to the work. If you do sign an
agreement, make sure you understand what it says and what, if any, rights you
will be giving to them.
[1] 17
U.S.C. §101
[2] 17
U.S.C. §201(b).
[3] 17
U.S.C. §203
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