The first question the publisher must ask with respect to the "work made for hire" doctrine is whether the creator of the work falls under the employee prong or independent contractor (freelancer) prong. The significance of this line-drawing is that there are different requirements in the Copyright Act for a work to qualify as a "work made for hire" depending upon whether the creator of the work is an employee or freelancer. If the creator of the work is an employee, the publisher, as the employer of this employee, automatically, without any written employment contract, owns the copyright and all exclusive rights in creative works of employees that are prepared within the scope of their employment. Judicial decisions have established that an "actual" employee is one where the publisher has the right to control the "manner and means" of production. Employee status will generally be found where there is a salaried employment relationship, tax withholding, employee benefits and other indicators of employment as outlined in Part I.
But if the creator of the work is not an employee, but instead a freelancer, than the "work made for hire" requirements of the independent contractor prong must be satisfied. This means that the work must be specially ordered or commissioned by the publisher, the work must fall into one of the nine enumerated categories of work, and there must be a signed writing between the parties where they agree that the work will be considered a "work made for hire."
Will the Publisher Own the Copyright for All Works Created by Employees?
Not necessarily. Even though the great majority of works created by employees will be owned by the publisher there is a possibility that some works might not be owned by the publisher. Although the requirement of "works prepared within the scope of employment" appears straight forward it can become somewhat complicated when employees work off the premises or when they create works on their spare time. If the work is to qualify as a "work made for hire" under the employee prong the employee must create the work within the normal scope of their job. The reason for this is that "no one sells or mortgages all the products of his brain to his employer by the mere fact of employment." Even if there is no question that the creator of the work is an employee, if the work is created outside the scope of the employee's normal job activities, it will cast doubt on the publisher's claim to the copyright. Therefore the "wise" publisher will reduce to writing the rights of the employee and publisher with respect to employment-related works and other works.