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17.9 Copyright Interests—Work Made for Hire (17 U.S.C. § 201(b))

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17.9 COPYRIGHT INTERESTS —WORK MADE FOR HIRE (17 U.S.C. § 201(b))

A copyright owner is entitled to exclude others from copying a work made for hire.

A work made for hire is one that is prepared by an employee and is within the scope of employment.

A work is made for hire within the scope of employment if (1) it is of the kind the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is made, at least in part, for the purpose of serving the employer.

The employer is considered to be the author of the work and owns the copyright [unless the employer and employee have agreed otherwise in writing].

A copyright owner of a work made for hire may enforce the right to exclude others in an action for copyright infringement.

Comment

This instruction may not be appropriate in cases in which a copyright was obtained under the 1909 Copyright Act. For such cases, see Dolman v. Agee, 157 F.3d 708, 711–12 (9th Cir.1998) (application of presumption of work for hire under the 1909 Copyright Act).

See 17 U.S.C. § 101 (definition of work for hire), 17 U.S.C. § 201 (b) (rights in work for hire). Congress used the words "employee" and "employment" in 17 U.S.C. § 101 to describe the conventional relationship of employer and employee. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989). "An employment (or commissioning) relationship at the time the work is created is a condition" for creation of a work for hire. See also Urantia Foundation v. Maaherra, 114 F.3d 955, 961 (9th Cir.1997). Absent a written agreement to the contrary, the employer is the author of a work made for hire within the scope of employment. U.S. Auto Parts Network, Inc., v. Parts Geeks, LLC, 692 F.3d 1009, 1117 (9th Cir.2012 (explaining when a work is made for hire within the scope of employment).

Supplemental Instruction: Employment Status

If the issue of the employment status of the work’s creator will be decided by the jury, the Supreme Court has suggested an eleven-factor test focusing on whether the creator of a work was an employee or an independent contractor under common-law agency principles. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739–40 (1989). No single factor is determinative. Id. The following instruction may assist the determination of the employment status of the person creating the work at issue:

Factors Regarding Work for Hire

You should consider the following factors in determining whether the creator of the work in this case was an employee of the [name of party identified]:

(1) The skills required to create the work. The higher the skills required, the more likely the creator was an independent contractor rather than an employee.

(2) The source of the tools or instruments used to create the work. The more the creator had to use his own tools or instruments, the more likely the creator was an independent contractor rather than an employee.

(3) The location of where the work was done. The less the creator worked at [name of alleged employer’s work site], the more likely the creator was an independent contractor rather than an employee.

(4) Applicability of employee benefits, like a pension plan or insurance. The more the creator is covered by the benefit plans [name of alleged employer] offers to other employees, the less likely that the creator was an independent contractor rather than an employee.

(5) Tax treatment of the creator by [name of alleged employer] . If [name of alleged employer] reported to tax authorities payments to the creator with no withholding or by use of a Form 1099, the more likely the creator was an independent contractor rather than an employee.

(6) Whether the creator had discretion over when and how long to work. The more the creator can control his or her work times, the more likely the creator was an independent contractor rather than an employee.

(7) Whether [name of alleged employer] has the right to assign additional projects to the creator. The more the creator could refuse to accept additional projects unless additional fees were paid, the more likely the creator was an independent contractor rather than an employee.

(8) Duration of the relationship between the parties. The more the creator worked on a project basis for [name of alleged employer], the more likely the creator was an independent contractor rather than an employee.

(9) The method of payment. The more the creator usually works on a commission or onetime-fee basis, the more likely the creator was an independent contractor rather than an employee.

(10) Whether the creator hired (or could have hired) and paid his or her own assistants. The more the creator hires and pays for his or her own assistants, the more likely the creator was an independent contractor rather than an employee.

(11) Whether [name of alleged employer] is a business. If the party that did the hiring is not a business, it is more likely that the creator was an independent contractor rather than an employee.

For a discussion of the weight of any of the eleven Reid factors, see Aymes v. Bonelli, 980 F.2d 857, 860–64 (2d Cir.1992). See also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1145 (9th Cir.2003) (grant of royalties to a creator of a work for hire, absent an express contractual provision to the contrary, does not create a beneficial ownership interest in that creator).

"Under copyright law, a work for hire clause [in a contract] vests all authorship rights in the employer" including the right of attribution; the employer is considered to be the author of the work for hire "once authorship rights are relinquished through a work for hire contract provision." Cleary v. News Corp., 30 F.3d 1255, 1259–60 (9th Cir.1994).

While all works created during the course of employment are works for hire, specially commissioned works prepared by independent contractors are considered works for hire only if they fall within certain categories of eligible works and the parties agree in writing that the works will become made for hire. See 17 U.S.C. § 101 (work made for hire if "specifically ordered or commissioned" exists only in nine specific categories). Warren, 328 F.3d at 1140 n.4 (when parties are not in an employer-employee relationship, a work for hire is created when the work is "specially commissioned pursuant to a written agreement" that it be considered a work for hire and the work produced comes "within one of the enumerated categories listed in 17 U.S.C. § 101(2)").

Approved 12/2012