The work for hire (WFH) doctrine deals with your ownership rights over the copyright to any work you produce for someone else. Unfortunately, it’s so often misunderstood by both employees and employers that I think people get it wrong more often than they get it right. And since most filmmakers make their living by creating their work on someone else’s dime, they rely heavily on the WFH doctrine, even if the terms “work for hire” or “work made for hire” are never uttered. So to clarify things, here’s a brief primer on WFH. Buckle up, it’s about to get informative!
The WFH doctrine is a very specific legal principle that arises under U.S. copyright law. The basic premise is that in certain situations, an employer will automatically own the copyright to work you do for them as a matter of right. But the manner in which an employer can assert that right depends heavily on whether you’re hired as an employee or an independent contractor.
If you’re hired as an employee, the work you create for your employer doesn’t belong to you, it automatically belongs to the employer. End of story. In employment situations, the ownership of copyright is not determined by the artist’s handiwork; it’s determined by the motive and desire of the employer. How will you know if you’re in an employment situation? Look for the traditional trappings of employment: salary, benefits, co-workers, office, boss, limited control over your work, etc. If you find yourself in this situation, the only way you can retain the copyright to work you’ve created is if the employer gives it to you in writing.
For example, if you’re hired as a full-time editor at a production company, any work you do within the scope of your employment (i.e. editing, color correction, mixing) will automatically be owned by the production company. This, by the way, may also extend to work you create outside your employment too, especially if that outside work falls within the scope of work you would have created for the employer.
But you and I both know that most filmmakers don’t work as employees; more often than not they work as freelancers. And when you’re hired as a freelancer, the rules change dramatically.
If you’re hired as an independent contractor or freelancer, the employer will own the copyright to your work only if all of these requirements are met:
1. The work is custom-ordered or commissioned;
2. Both parties agree in writing that it’s a work for hire;
3. The work falls into one of these nine categories: 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, or an atlas.
If you’re a freelancer and just one of these requirements isn’t met, it isn’t a WFH and you keep the copyright. One of the biggest misconceptions I see with freelancers is that they usually assume once the work is complete, they no longer have ownership rights and walk away, not realizing that they still own the copyright. So for example, if you’re hired as a cinematographer on a film, as long as you and the employer agreed in writing that it’s a WFH, the copyright will be owned by the employer, since film is always a custom job and is one of the nine categories specified under copyright law.
How will you know if you’re an independent contractor? Look for factors like like greater control over the work, using your own equipment, working out of your own home or office, working on your own time, employment end dates, words like “freelance” or “independent contractor,” etc.
Believe it or not, it’s not always easy to tell whether you’re an employee or an independent contractor, and you and the employer may have different views on it. In many cases, you might find that the employer refers to you as an “employee” even though from the outside it looks like you’re a freelancer. Maybe you work in the employer’s office and you receive a salary, but you’re using your own gear and set your own hours. How do you deal with an employment situation where it’s unclear what your status is?
Clarity is the antidote to that kind of ambiguity. Every employment contract should state whether, a) you’re being hired as an employee or a contractor, and b) whether you or the employer retains the copyright. In fact, WFH can get so muddled that I’ve stopped using the term in any contract I draft. I simply state which party retains the copyright because the actual words “work for hire” can cause more confusion than they resolve.
Film producers, take note: Be clear and concise when hiring. It’ll help avoid any copyright ownership conflict down the road. If you’re a filmmaker looking to get hired on your next job, make sure you discuss what to do with that copyright in every contract you sign with an employer. You will probably have to give it up in the end, but that’s the price for continuing to work in a field you love. And if you’re an employee in the film industry where job security is scant, you may not own the copyright to your work, but you can take solace in the fact that you have a steady job. MM
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Gregory R. Kanaan, Esq. is a Boston-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.
The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.