Recently, the American Bar Association’s Forum on the Entertainment and Sports Industries’ Entertainment & Sports Lawyer periodical published a new article of mine. The article is titled “Heroes for Hire No More: Rethinking the Presumption That Comic Books Qualify As A Work-Made-For-Hire Under the Copyright Act of 1976.” You can read the article in its entirety via the link, but I will provide a brief summary below.
I have spent a fair amount of time thinking about this over the years, and I do not believe that comic books automatically quality as a work-made-for-hire under the Copyright Act of 1976. In order for a work to be considered a work-made-for-hire under the Copyright Act, it must either (i) be created by an employee or (ii) fall into one of nine specific categories and be part of a written agreement.
As most people know, the comic book industry primarily runs on freelancers and contractors. Because most comic book creators are not employees, that primarily rules out the ability to claim comics as works-made-for-hire under the first prong.
Comic books also do not fall neatly into any of the nine categories that can be designated as works-made-for-hire under the Copyright Act. Comic books are joint works, with each contributor considered to be a joint owner in the work, and joint works are not a work-made-for-hire category. The only way for comic books to be considered a work-made-for-hire would be if they are considered a compilation or collective work. Both of these require many copyrighted works be put together with each work having different ownership.
In my opinion, in order for a comic book to be a work-made-for-hire, it must be published in a format that contains multiple creative works owned by different owners. Based on this criterion, it is uncertain if a monthly issue of a comic book or a graphic novel would meet this standard. A trade paperback, anthology-style work, or collected edition might meet the standard if they contain multiple works owned by different owners.
Whether or not comic books can be considered to be work-made-for-hire is an important question for publishers and creators. If they are not, then publishers would have to rethink how they employ creators or how they publish their books. For creators, it means that they may have additional rights, such as termination rights, that they would not have been entitled to if a comic book was a work-made-for-hire.
As stated above, this is a brief summary. If you want to read about this in more detail, you can read the original article here.