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614.2 (B) (6) Individual Named as Author of a Work Made for Hire

 

614.2 (B) (6) Individual Named as Author of a Work Made for Hire

 

When an applicant names an individual as the author (rather than a legal entity) and answers the work made for hire question “yes,” the registration specialist may communicate with the applicant if it appears unlikely that the work is a work made for hire, based on the Office’s experience or based on the information set forth in the deposit copy(ies) or elsewhere in the registration materials.

 

If the information in the registration materials suggests that the individual is the employer of another person, the specialist will assume that the work was created by the individual’s employee(s) while acting within the scope of their employment. If it appears that the individual may have commissioned the work, the specialist will assume that the work was specially ordered or commissioned by that individual, provided that the work falls within one or more of the nine categories of works listed in the statutory definition of works made for hire.

 

Examples: Application acceptable

 

• An application for a travel book containing text and illustrations names Roland Fingers as the author of the “text” and the work made for hire question is not answered. The application also names Roland as author of “illustrations” with the work made for hire question answered “yes.” Roland Fingers is listed in the deposit copy as the author of the text, but Jason Foote is named as the author of the illustrations. The registration specialist will register the claim without communicating with the applicant. The illustrations are considered a supplementary work, which is one of the nine categories of works that may be specially ordered or commissioned. Therefore, the specialist will assume that Roland and Jason signed a written agreement specifically stating that Jason would create the illustrations for Roland as a work made for hire.

 

• An application is submitted along with a published compact disc. The applicant names the performing artist Tammy Conklin as the author of the sound recordings that appear on the CD. The applicant also names Tammy as the author of the photograph that appears on the cover with the work made for hire box checked “yes.” The photograph appears to be a photo of the performing artist, and a statement on the CD identifies Donald Blake as the author of the photograph. The photograph could be considered a supplementary work, which is one of the nine categories of works that may be specially ordered or commissioned. Therefore, the registration specialist will assume that Tammy and Donald signed a written agreement specifically stating that Donald would take the photograph as a work made for hire. The registration specialist will register the claim with an annotation, such as “Basis for registration: Unit of publication containing collective work and other component elements.”

 

• An application for a documentary names Tim Berger as the sole author of the work. The work made for hire question is answered “yes.” The credits at the end of the documentary name Tim as the sole producer and director of the work, along with other individuals who apparently contributed camerawork, writing, animation, and other forms of authorship. The registration specialist will register the claim without communicating with the applicant. Because a work created as part of a motion picture is one of the nine categories of works that may be specially ordered or commissioned, the specialist will assume that Tim signed a written agreement with the other individuals specifying that their contributions would be considered a work made for hire.

 

Examples: Application questioned

 

• Elsa Frankfurter is named as the author of an architectural work with the work made for hire box checked “yes.” The deposit copy contains a copyright notice stating “¬© 2011 Achtung GmbH.” Because a corporation is named in the copyright notice and the work made for hire box is checked “yes,” the registration specialist may ask the applicant if Elsa created this work as an employee of Achtung GmbH. If so, the specialist will ask for permission to remove Elsa’s name from the application and to add the corporation’s name as the author and claimant.

 

• An application is submitted for a comic book. Josh Willoughby is named as the sole author of the work and the work made for hire box is checked “yes.” The copy names Josh as the author of the “text” and Harley Quince as the author of the “illustrations.” The registration specialist will communicate with the applicant. It appears that Josh hired Harley to create the illustrations pursuant to a work made for hire agreement, and that Josh is the sole author of the text. If that is the case, Josh should be named on the application as both the author of the text (work made for hire answered “no”) and the author of the illustrations (work made for hire answered “yes”).

 

For more information on works made for hire see Chapter 500, Section 506.1.