Concert • Record • Artist • Promotion • Since 1986

WHAT IS A WORK FOR HIRE?

Work for hire is a special term used in the United States Copyright Act. Normally, when a person or group creates a copyrightable work, whether a song or a computer program or a sculpture, the person or persons creating the work have a copyright in the work. Thus, the creators can exploit the work and receive money for their creative energies.

A work for hire is when a person creates a copyrightable work but does not own it. How can this be? The Copyright Act allows for the copyright to go not to the creator but to the person who hired the creator to make the work. The law treats the creator as if he did not even participate. The employer owns the copyright and it is as if they created the work themselves without any help from the actual creator.

Musicians should be very careful of work for hire contracts. Under a work for hire contract, you have absolutely no right in the music you create. There are legitimate times when work for hire contracts are acceptable. If you write music for commercials, you will undoubtedly have to sign a work for hire contract. The company who makes the product will want the rights to the jingle you create. Another time you may encounter a work for hire contract is in session work. If someone asks you to help them record but not be a full-blown member of the band, they may ask you to sign a work for hire contract. This situation can be a little trickier than the commercial jingle example. If you sign a work for hire contract to play with a band, you will not be entitled to any royalties or even credit for your work other than what the band agrees to pay you. It will be as if you never existed and the band will be deemed the creator of your music.

A work for hire is not the same thing as transferring ownership in a copyrightable work. You may create a song and then sell it to a company for a commercial. This is not the same thing as a work for hire. You have more rights if you create a song yourself then transfer it than if you had a work for hire contract. The Copyright Act allows an author of a song to get it back even after transferring. If you transfer a song to someone, you may serve written notice on the person who holds the copyright between the thirty-fifth and fortieth years after transferring the copyright and get your song back! Thirty-five years may seem like a long time and you may think that songs won't be worth anything in that long, but think of songs like, "White Christmas" or "Memories". Under a work for hire contract, you never get your song back because you never owned it in the eyes of the law.

A work for hire contract is something you should try to avoid. Fortunately, there are specific criteria needed to create a work for hire. A copyrightable work will be considered a work for hire if you are an employee and create the work in the course of your employment. For example, people who create computer programs for IBM are making works for hire. IBM will own the copyright to the final program, not the programmer. If you are not a regular employee, there must be a written contract specifically stating it is a work for hire contract. This is what musicians will run into the most. If you see a contract that has the words "work for hire" in them, your antennas should immediately go up. Be careful with these type of arrangements. You may not have any rights in whatever you create.