Copyright in Works Made for Hire

Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it.

Generally, only the author or those deriving rights from the author can rightfully claim copyright protection. There is an exception to this principle: “works made for hire.” If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual. The concept of “work made for hire” can be complicated, however, and it can have real effects on the ownership of the copyright and the duration of protection.

Section 101 of the Copyright Act defines a “work made for hire” in two parts:

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
   • A part of a motion picture or other audiovisual work
   • A translation
   • A supplementary work
   • A compilation
   • An instructional text
   • A test
   • Answer material for a test
   • An atlas

A typical work – one not made for hire – will have protection for the life of author plus 70 years. Corporations don’t have lives, however, and so the duration of a work made for hire is calculated differently. The term of copyright protection of a work made for hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.