1114.6 (I) (2) Photos Created as Works Made For Hire
As discussed in Section 1114.1, a group of photographs may be registered as works made for hire (I) if all the photos were created for the same party, (ii) if that party is named as the author of each photo, and (iii) if all the photos are identified in the application as “works made for hire.”
NOTE: If these requirements have been met, the photos may be registered together even if they were shot by different photographers.
If each photograph in the group is a work made for hire, then the party that hired the photographer or the party that ordered or commissioned the photos should be named as the author of those works (rather than the photographer who actually shot each image).
For purposes of registration, a photograph is considered a work made for hire if it was shot by an employee acting within the scope of his or her employment. A photograph may also be considered a work made for hire if it was specially ordered or commissioned by a third party, if the photographer and the third party expressly agree in a writing signed by both parties that the photograph shall be considered a work made for hire, and if the photograph was specially ordered or commissioned for use as:
• A contribution to a collective work
• A part of a motion picture or other audiovisual work.
• Answer material for a test.
• Instructional text, which is defined as a photograph prepared for publication and with the purpose of use in systemic instructional activities.
• A supplementary work, which is defined as a photograph 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 pictorial illustrations or answer material for tests.
17 U.S.C. § 101 (definition of “work made for hire”).
If the employer or commissioning party is an organization, the applicant should provide that entity’s name on the Author screen in the field marked “Organization.” If the employer or commissioning party is an individual, the applicant should provide that individual’s name in the field marked “Individual.” In both cases, the applicant should answer “yes” to the question “Is this author’s contribution a work made for hire?”
NOTE: When registering a group of photos as works made for hire, there is no need to identify the individual photographer(s) who actually shot each image.
As discussed in Section 1114.6(K), an applicant may register a group of photographs if the claimant obtained all of the exclusive rights in those works through a transfer of ownership. But an applicant may not combine photos created as works made for hire with photos obtained through a transfer of ownership. For example, if an advertising agency hired a photographer to create a group of photos, and if the agency acquired another group of photos taken by the same photographer through an assignment of copyright, the agency would have to separate those photos into two groups and submit a separate application for each group: One application naming the advertising agency as the author with the work made for hire question answered “yes,” and the other with the photographer named as the author, an appropriate transfer statement, and the work made for hire question answered “no.”