Am I Creating a Copyright or Inventing a Patent for my Employer?

Sometimes, a creator of the work is not the copyright or patent holder, because the work is made for hire. “Work made for hire” is defined as a work prepared by an employee within the scope of his or her employment, or one of the nine specific types of work specially commissioned and agreed in writing by both parties that the work shall be considered a work made for hire.

If the hiring party or hired party is not sure whether an employment relationship exists, we look to the combination of several factors, among which are: who supplies the material, the location of the work, duration of the relationship, whether hiring party can assign additional projects to the hired party, and the hiring party’s role in hiring and paying assistants.

The nine commissioned works that may be prepared by non-employees and that will be considered to be works for hire if there is a written agreement explicitly providing it is a work for hire are: a contribution to a collective work, a part of motion picture or other audiovisual work as sound recording, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. If the commissioned work is not in one of these nine categories, it cannot be considered a work for hire. Most times it is not a clear cut case. A determination as to whether a specific work falls on this list is often times the most contentious argument between the hiring and hired party.