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  • Home
  • Who We Serve
  • Practice Areas and Fees
    • General Counsel Service
    • Business Law >
      • LLC Formation
      • LLC Operating Agreements
      • Close Corporation Formation
      • Corporate Bylaws
      • Close Corporation Agreements
      • Other Business Law Services
    • Business Contracts >
      • B2B Service Agreements
      • Contract Review and Advice
      • Customer Agreements
      • Financial Agreements
      • Joint Venture Agreements
      • Lease Agreements
      • Noncompete Agreements
      • Nondisclosure Agreements
      • Waiver and Release Agreements
      • Website Privacy Policies
      • Website Terms of Service
    • Business Sales >
      • Business Purchases and Sales
      • Letter of Intent
      • Purchase Agreements
      • Buy-Sell Agreements
      • Membership Interest Transfer Agreements
      • Business Succession & Disaster Planning
      • Business Dissolutions
    • Raising Money From Investors >
      • Private Placement Memorandums
      • Investment Agreements
    • Franchising and Business Opportunities >
      • Franchise Disclosure Documents
      • Franchise Agreements
      • Ohio Business Opportunity Plans
    • Nonprofit Law >
      • Nonprofit Formation
      • Co-op Formation
      • Tax Exempt Status
      • Nonprofit Governance
      • Nonprofit MOUs and Agreements
      • Nonprofit General Counsel Service
    • Intellectual Property >
      • Trademark Search
      • Trademark Registration
      • Trademark Maintenance
      • Copyright Registration
      • Work For Hire Agreement
      • Licensing Intellectual Property
      • Assigning Intellectual Property
      • Proprietary Information and Invention Assignment Agreements
      • Confidentiality Agreements
      • Intellectual Property Audit
    • Employment Law >
      • Employment Contracts
      • Employee Handbooks
      • Employment Policies
      • Independent Contractors
  • Adding Value
    • Legal Audit Checklist
    • Legal Dictionary
    • 7 Common Legal Mistakes
    • Succession and Emergency Planning Worksheet
    • Business Contracts: Review Checklist
    • Webinars >
      • HR 101: Managing the Growing Pains That Come With Growing Your Business
      • Hiring Independent Contractors
      • Legal Audit and Risk Assessment
      • Structuring a Social Enterprise
  • Bio
  • Blog
  • Scheduling
    • Prospective Client Scheduling
    • Existing and Former Client Scheduling
    • Networking Scheduling

Work For Hire Agreements

Work For Hire Agreements

Trademark Search
Trademark Registration
Trademark Maintenance
Copyright Registration
​Work For Hire   
   Agreements
Licensing Intellectual
   Property

Assigning Intellectual
   Property

Proprietary Information
   and Invention
​   Assignment Agreements

Confidentiality Agreements
​Intellectual Property Audit
Additional Information
​Trademark Law
Other Trademark Services

Trademark Infringement
Copyright Law
Copyright Infringement

Digital Millennium Copyright
​   Act (DMCA)
The bundle of rights associated with the concept of “copyright,” exists from the moment a work is created in a fixed form. However, those rights generally belong to the creator or author of the work. So what happens when that author is someone you are paying to create the work for you, your business, or non-profit? ​Enter the concept of “works made for hire.”

What Does the Term “Work For Hire” Mean?
A work for hire generally refers to those works that your business or nonprofit hired someone else to create. However, copyright law has specific requirements that must be met before a work will be treated as a work made for hire. The requirements vary depending on whether the work was made by one of your employees or by an independent contractor. 

Work Created by Your Employees
If the work was created by an employee “in the course and scope of their employment,” then the work is a work made for hire. Whether the person is an employee or not for the purposes of copyright law depends on 3 factors:
  1. Control over the work: Do you, as the employer, have control over the work? In other words, do you control how and where the work gets done? Do you provide the equipment necessary to create the work?
  2. Control over the employee: Do you, as the employer, have control over the employee? Do you set the schedule for creating the work? Do you assign work to the employee? Do you have the right to hire the people who work under the employee?
  3. Status and conduct of the employer: Do you conduct yourself as an employer? Do you provide employee benefits? Do you withhold taxes from the employee’s paycheck? Are you in the business of creating the types of work in question?

How these factors play out will vary from one situation to the next, but the case law is clear that just having one of these factors is not enough to make someone an employee for copyright purposes. Nevertheless, the closer the relationship comes to traditional, full-time employment and the more that creating works of the type in question is part of the employee’s typical job responsibilities, then the more likely the person will be considered an employee and their work treated as a work made for hire. 
Bottom Line: You don’t want an employee to create a valuable work for your business or
​non-profit and then, because of the valuable nature of the work, find yourself in a legal fight because the employee tries to claim ownership of the work.
Work Created by an Independent Contractor
But what if you are like many businesses and nonprofits who hired an independent contractor to create something? Certain types of works that are specially ordered or commissioned will be a work made for hire if there is an express written agreement signed by the parties that designates the work as a work made for hire. The types of works that can be designated as works made for hire are limited to:

  • Contributions to a collective work,
  • Parts of motion pictures or other audiovisual works,
  • Translations,
  • Supplementary works (which refers to things like introductions, forewords, afterwords, illustrations, maps, charts, tables, editorial notes, bibliographies, appendices, indices, etc.)
  • Compilations, 
  • Instructional texts (specifically, works intended to be used in systematic instructional activities),
  • Tests,
  • Answer materials for a test, or
  • Atlases. 

Outside of these specific types of work, just because you call it a “work made for hire” does not make it so. Instead, your contract with the independent contractor should assign all of their rights in the work to your business or non-profit. And this isn’t just some trivial distinction. If the work is made for hire, then the copyright never belonged to the worker who created it, but instead to the organization that paid for the creation of the work. But if, on the other hand, the copyright was assigned to the organization, there is a provision in copyright law that allows the original author to terminate the assignment after 35 years.

Use Caution
Because of the current trend towards cracking down on employers who mis-classify their workers as independent contractors, you should be especially careful about using generic work for hire clauses in your independent contractor agreements with individuals. For example, California law creates a presumption that if the contract with an individual designates their work as a work made for hire, then that individual is really an employee. This can create all sorts of problems if you are hiring an independent contractor from another state like California. It can potentially create liability for that person’s workers’ compensation and unemployment insurance, plus the associated back taxes, penalties, and interest, along with any other employment law claims that worker might try to bring against your business or nonprofit. 
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Flat Fee Pricing
Work for Hire Agreement:​ - ​$600

Employment/Independent Contractor Agreements that properly address the assignment of copyright in situations where a work for hire clause may not be appropriate - $1,625

IP Licensing Agreements for situations where you want to retain ownership of the copyright while giving someone else permission to use the work. - $4,275
  • Where appropriate, we can add a HIPAA Business Associate Agreement: +$1,100
  • Review and Redline: $2,150

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