506.2 Works Created by an Employee Within the Scope of His or Her Employment
The Copyright Act does not define the terms “employee,” “employer,” or “scope of employment.” The Supreme Court has held that Congress intended these terms “to be understood in light of agency law” and that the courts should rely “on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989).
Examples of factors that may be relevant to this inquiry include the following (although none of these factors is determinative):
• The skill required to create the work.
• The location where the work was created.
• The source of the instrumentalities and tools used to create the work.
• The duration of the relationship between the parties.
• Whether the hiring party has the right to assign additional projects to the hired party.
• The method of payment.
• The extent of the hired party’s discretion over when and how long to work.
• The hired party’s role in hiring and paying assistants.
• Whether the hiring party is in business.
• Whether the work is part of the regular business of the hiring party.
• Whether the hiring party provided employee benefits to the hired party.
• The tax treatment of the hired party.
• Whether the work is the type of work the hired party was authorized to perform.
• Whether the work occurs substantially within the authorized work hours and space limits of the hired party.
• Whether the work is actuated, at least in part, by a purpose to serve the hiring party.
See id. at 751-52 (citing Restatement (Second) of Agency § 220 (2) (1958)); U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F. 3d 1009, 1015 (9th Cir. 2012).
The following examples illustrate some of the factors that may indicate whether a work does or does not qualify as a work made for hire.
Work created by an employee
• Dave Muller is a full time chemist for Continental Chemicals. Dave created a computer program that evaluates the company’s products. By eliminating the need to perform mathematical calculations by hand, the program improved the efficiency of the company’s operations. Continental subsequently asked Dave to develop similar programs for its other products. Dave wrote and tested these programs at home using his personal computer. He did not receive overtime or any additional pay for creating these programs. Each program is considered a work made for hire. Although Dave was not hired as a computer programmer, he was employed by Continental when he wrote these programs and he wrote the programs, at least in part, to further the company’s interests. Developing these programs was incidental to his responsibilities because they improved the quality control of the company’s operations. Dave specifically created the programs for the company’s products and it is unlikely that he would do this type of work on his own. In the application to register the program, Continental Chemicals should be named as the author and the work made for hire box should be checked “yes.”
Work created by an employee acting within the scope of his or her employment
• Lois Lang has worked part time for the Georgetown Gazette for five years. She is expected to write at least five articles per week and she does most of her work at the paper’s office. She is paid on a monthly basis and income taxes, social security, and medicare are withheld from her paycheck. The Gazette reimburses Lois for her driving expenses, but she receives no direct employee benefits. Lois’s contributions to the paper are considered works made for hire. In the application to register Lois’s contributions, the publisher of the Georgetown Gazette should be named as the author and the work made for hire box should be checked “yes.”
• Kir Royale Records is in the business of producing classical music recordings. Stefan Brooks is a sound engineer who works for Kir Royale from time to time. Stefan performs all of his work at the company’s studio using the company’s sound mixing equipment. His supervisor closely monitors his job performance and evaluates the quality of his work. Stefan is paid an hourly wage and he receives no employee benefits. The recordings that he produces for Kir Royale Records are considered works made for hire. In the application to register these sound recordings, Kir Royale Records should be named as the author of the recordings and the work made for hire box should be checked “yes.”
• Jack Thomas is a full time programmer for Creative Computer Corporation. His job responsibilities include writing source code, designing user interfaces, and preparing program documentation. Jack creates a subroutine for a new program called Utopolis. The routine is considered a work made for hire, because Jack created this work while acting within the scope of his duties as an employee of Creative Computer Corporation. In the application to register Utopolis, Creative Computer Corporation should be named as the author and the work made for hire box should be checked “yes.”
Work created by an individual who was not acting within the scope of his or her employment
• John Bellevue is a staff composer for SoundTrax, Inc., a company that produces music for motion picture studios. While on a leave of absence, John wrote a song called “Saturdays Are the Best” to celebrate his son’s birthday. Although John is a fulltime employee of SoundTrax, he did not create this song as part of his regular duties. Therefore, the song is not a work made for hire. In the application to register “Saturdays Are the Best,” John should be named as the author of the song and the work made for hire box should be checked “no.”
• Ryan Jennings created a compilation of pharmaceutical statistics while in graduate school. When he graduated, Ryan formed Prescription Financial LLP, assigned the copyright in this compilation to the company, and appointed himself President and CEO. The compilation is not a work made for hire, because Ryan was not an employee of Prescription Financial when he created this work. In the application to register the index, Ryan should be named as the author and the work made for hire box should be checked “no.”
Work created by an individual who is not an employee
• WMFH-FM asked Aaron Washington to create a jingle for the station. The station told Aaron that the jingle should be thirty seconds long and that it should include the sound of a helicopter. Aaron wrote the jingle at home using his own equipment and he did most of his work in the middle of the night. Aaron was paid a flat fee for this assignment. The jingle is not a work made for hire because Aaron was not an employee of WMFH. In the application to register this jingle, Aaron should be named as the author and the work made for hire box should be checked “no.”
• Julianne Ziegler prepared the first draft for a screenplay titled “Princesses vs. Zombies.” After completing the first draft, Zombieflix LLC asked Julianne to prepare a shooting script based on her screenplay. The first draft of this screenplay is not a work made for hire, because Julianne completed the draft before she was hired by Zombieflix LLC. In the application to register the first draft, Julianne should be named as the author and the work made for hire box should be checked “no.”
• Marilyn Chariott works for an accounting firm. She wrote a song titled “Buy the Numbers” in her spare time and someday she hopes to be hired as a singer/songwriter. Marilyn’s song is not a work made for hire, because she did not write this song for her current employer. In the application to register “Buy the Numbers,” Marilyn should be named as the author and the work made for hire box should be checked “no.”