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Thursday, 5 January 2012

Will the Publisher Own the Copyright for All Works Created by Freelancers?

Not necessarily. Although the independent contractor prong requirements for a work to qualify as a "work made for hire" also appear to be straight forward, publishers often fail to satisfy the specific requirements. If the work fails to qualify as a "work made for hire" there is a great likelihood that the publisher will not own the work that he has paid for.

A freelancer's creative work in order to qualify as a "work made for hire" must satisfy the exact requirements of the Copyright Act. (1) The work must have been specially ordered or commissioned by the publisher. (2) The work must "fit" into one of nine narrow statutorily enumerated categories of work: (i) contribution to a collective work, (ii) part of a motion picture or other audiovisual work, (iii) translation, (iv) supplementary work (i.e., prepared for publication as a secondary adjunct to another author's work such as an index or forward), (v) compilation, (vi) instructional text, (vii) test, (viii) answer material for a test, or (ix) atlas. (3) The parties must agree in a written and signed document that the work shall be considered a "work made for hire." In addition, although it is not stated in the Copyright Act, the "work made for hire" document must be signed by both parties prior to the commencement of the work. If the publisher fails to satisfy any of these requirements the work will not qualify as a "work made for hire" and the publisher could lose copyright ownership of the work.

Where do publishers go wrong when freelancers create works that the publisher wants to qualify as "works made for hire"? The specially ordered or commissioned requirement is usually never a problem. The nature of work frequently creates problems for the publisher. The reason for this is that the nine enumerated categories of works are not all inclusive and many significant categories of works cannot be considered a "work made for hire" under the independent contractor prong of the Copyright Act. Therefore if a work does not fall into one of the nine categories, even if it was specially ordered or commissioned, it will not qualify as a "work made for hire." From my experience, the written document requirement presents the greatest difficulty for publishers. Some publishers have only oral agreements with their freelancers; as may be expected the work created under an oral agreement will not qualify as a "work made for hire". Other publishers prepare the written "work made for hire" document, however, for a variety of reasons the document is not signed by both parties until after the freelancer has started or even completed creation of the work. If this situation occurs the work will not qualify as a "work made for hire"; this is because the written document was not executed by both parties prior to the creation of the work.

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