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By law, the person who creates any work subject to copyright protection is deemed the copyright owner. However, some special circumstances under which another person or a company could be the actual copyright owner exist. One such circumstance is the “work made for hire” concept.

If a work is made for hire, the person who creates it is not the owner of the copyright. Whether a work is made for hire is determined by the facts that existed at the time the work was created.

This can arise in either of two situations:

• When the work is created by an employee as part of the employee’s regular duties and within the scope of his or her employment contract. In this case, the employer will be deemed the copyright owner.
• When a person and the respective hiring party have an express written agreement that the work will be considered a “work made for hire” and the work is specially ordered or commissioned for use as:
  • a contribution to a collective work;
  • a compilation;
  • a part of a motions picture or other audiovisual work;
  • a translation;
  • a supplementary work (for example, a foreword, afterword, pictorial illustration, map, chart, table, editorial note, musical arrangement, answer material for tests, bibliography, appendix or index);
  • an instructional text (a literary, pictorial, or graphic work prepared for publication use in systematic instructional activities);
  • a test;
  • answer material for a test; or
  • an atlas.

Scope of employment

For an employee’s work to be considered a “work made for hire”, the work must be produced within the employee’s “scope of employment”. The Copyright Act, however, does not contain clear definitions of the terms “employee”, “employer”, or “scope of employment”. Here are some key questions you may need to consider:

• What skill was required to create the work?
• Where was the work created and did the hiring party provide the space, materials, or tools for the creation of the work?
• What was the length of the relationship between the parties? Did the hiring party have the right to assign other projects besides the one under review? Was the the hiring party able to direct the creator on the timeframe for the creations of the work?
• How was the creator paid?
• Is the creator of the work a business owner? Was the creator able to hire and pay third parties?
• Was the work created as part of the regular business hours of the hiring party? Was the work created as part of the creator’s usual tasks? Was the work created during the creator’s authorized work time?

Specially ordered or commissioned works

To be considered a work made for hire, a specially ordered or commissioned work must satisfy all of the following four criteria:

• The work must fall within one of the nine categories of works listed above
• There must be a written agreement between the party that ordered or commissioned the work and the individual(s) who created it.
• In the written agreement, the parties must expressly agree that the work is to be considered a work made for hire.
• The written agreement must be signed by all parties.

It is important to understand the “work made for hire” concept to ensure that you properly retain or obtain the ownership rights you expect. For example, if you are an employee who creates web or mobile apps for your company’s clients, you may spend a lot of time and effort creating the software using Python, PHP, or some other programming language, but ultimately you do not own any rights to it. Instead, the rights will be owned by your employer (unless your employer’s client has a contract for the creation of the software in which the employer assigns/transfers copyright ownership to the client itself). This means that you cannot take copies of the software you created to another job or use the software in any other way for yourself or anyone else without explicit permission from your employer.