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506.3 Works Specially Ordered or Commissioned as a Work Made for Hire

 

506.3 Works Specially Ordered or Commissioned as a Work Made for Hire

 

A specially ordered or commissioned work is considered a work made for hire if it satisfies the following criteria:

 

• The work must fall within one or more of the nine categories of works listed in the statutory definition.

 

• There must be an express written agreement between the party that ordered or commissioned the work and the individual(s) that actually created the work.

 

• The agreement must state that the work shall be considered a work made for hire.

 

• The agreement must be signed by both parties.

 

If a work fails to satisfy all of these requirements, it does not qualify as a work made for hire.

 

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 under the second part of the statutory definition.

 

Works specially ordered or commissioned pursuant to a written agreement specifying that the work will be created as a work made for hire

 

• Lighthouse Books Inc. is the author of a textbook. The company hired Nous Traduisons Inc. to translate this work from English into French. Before Nous Traduisons began working on this project, the parties signed a written agreement stating that Nous Traduisons would translate the textbook for Lighthouse Books as a work made for hire. The work satisfies the second part of the statutory definition, because a translation is one of the nine categories of works that may be specially ordered or commissioned and because the parties signed a written agreement specifying that the work would be created for Lighthouse Books as a work made for hire. In the application to register this work, Lighthouse Books, Inc. should be named as the author of the translation and the work made for hire box should be checked “yes.”

 

No written agreement between the parties specifying that the work will be created as a work made for hire

 

• Judy Smith works for a car dealership. During her lunch break, she created an atlas that depicts the cities and territories in an imaginary country. She hopes to sell her work to a company that publishes fantasy books. Judy’s atlas fails the first part of the statutory definition because she did not create this work for her employer while acting within the scope of her employment. Although an atlas is one of the nine categories of works that may be created as a work made for hire, Judy’s atlas does not satisfy the second part of the statutory definition because she has not signed a written agreement specifying that she would create this atlas for another party as a work made for hire. In the application to register this atlas, Judy should be named as the author and the work made for hire box should be checked “no.”

 

Work does not fall within the nine categories of works listed in the statutory definition that may be specially ordered or commissioned as a work made for hire

 

• Monkey Business Inc. hired Heath Liszewski to create the design for a new line of wallpaper. The work does not satisfy the first part of the statutory definition because Heath is an independent contractor and he was paid a flat fee for his work on this assignment. Therefore, he is not an employee of Monkey Business. Although the parties signed a written agreement specifying that Heath would create this work for Monkey Business, it does not satisfy the second part of the definition because two-dimensional artwork is not one of the nine categories of works that may be specially ordered or commissioned as a work made for hire. In the application to register this work, Heath should be named as the author and the work made for hire box should be checked “no.”