From Wikipedia, the free encyclopedia
A work made for hire (sometimes abbreviated as work for hire or WFH) is a work created by an employee as part of his or her job, or a work created on behalf of a client where all parties agree in writing to the WFH designation. It is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work. According to
and certain other copyright jurisdictions, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The incorporated entity serving as an employer may be a corporation or other legal entity, an organization, or an individual.
Accreditation has no impact on work for hire. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. States that are party to the
recognize separately
and , with moral rights including the right of the actual creators to publicly identify themselves as such, and to maintain the integrity of their work.[]
For example,
hired many programmers to develop the
, which is credited simply to Microsoft Corporation. By contrast,
lists many of the developers of
in its credits. In both cases, the software is the property of the employing company. In both cases, the actual creators have moral rights. Similarly, newspapers routinely credit news articles written by their staff, and publishers credit the writers and illustrators who produce
featuring characters such as
or , but the publishers hold copyrights to the work. However, articles published in academic journals, or work produced by freelancers for magazines, are not generally works created as a work for hire, which is why it is common for the publisher to require the copyright owner, the author, to sign a , a short legal document transferring specific author copyrights to the publisher. In this case the authors retain those copyrights in their work not granted to the publisher.[]
The circumstances in which a work is considered a "work made for hire" is determined by the
(1) a work prepared by an employee within the scope of h or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)
The first situation applies only when the work's creator is an employee, not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employees from independent contractors in the work for hire context, , the Court listed some of these factors:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry ar the source of the instrum the
the duration of the relationship whether the hiring party has the right to assign additional project the extent of the hired party's discretion over when
t the hired party's role in hiring a whether the hiring
the provision
and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."
On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:
the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9)
the work must be specially ord
there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."
In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though not signed, before the work begins. Retroactive work for hire is not permitted.
When relying on agreements in which creators transfer rights to a hiring party (), a hiring party often finds that it has only limited scope to alter, update, or transform the work. For example, a motion picture may hire dozens of creators of copyrightable works (e.g., music scores, scripts, sets, sound effects, costumes) any one of which would require repeated agreements with the creators if conditions for showing the film or creating derivatives of it changed. Failing to reach agreement with any one creator could prevent the showing of the film entirely. To avoid this scenario, producers of motion pictures and similar works require that all contributions by non-employees be works made for hire.
On the other hand, a work for hire agreement is less desirable for creators than a . Under work for hire, the commissioning party owns all rights from the very start even if the contract is breached, whereas under a transfer of rights, the creator can hold back the rights until all terms of the contract are fulfilled. Holding back the rights can be a forceful tool when it is necessary to compel a commissioning party to fulfill its obligations.
An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright. However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire." These restrictions, in both the work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings. Nonetheless, failure to secure a work-for-hire agreement by commissioning organizations can create difficult situations. One such example is the artist 's 1985 statue , an iconic symbol of the city of Portland, Oregon. Unlike most works of public art, Kaskey has put strong prohibitions on the use of images of the statue, located atop the main entrance to the famous . He sued
for including shots of the statue in the
motion picture . As a result, it is nearly impossible to film portions of one of downtown Portland's most vibrant neighborhoods, and the city has lost out on the potential to create merchandise and souvenirs from one of its most iconic landmarks.
An author can grant their copyright rights (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).
The application of the law to materials such as lectures, textbooks, and academic articles produced by teachers is somewhat unclear. The near-universal practice in education has traditionally been to act on the assumption that they were not work for hire.
Where start-up technology companies are concerned, some courts have considered that the traditional factors for finding that an author is an "employee" can be less important than in more-established companies, for example if the employee works remotely and is not directly supervised, or if the employee is paid entirely in equity without benefits or tax withholding.
In 1999, a work for hire related amendment was inserted into the Satellite Home Viewer Improvement Act of 1999. It specified that sound recordings from musical artists could be categorized as works for hire from the recording studios. The
faced controversy over this amendment, leading to the creation of the
and the eventual repeal of the amendment in 2000. "Sound recording" is no longer a work for hire category.
If a work is created by an employee, part 1 of the copyright code’s definition of a work made for hire applies. To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an “employer-employee” relationship as defined by agency law:
1 Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
2 Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
3 Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)
In the United States a "work for hire" (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term, life of the author plus 70 years, because the "author" of a work for hire is often not an actual person, in which case the standard term would be unlimited, which is unconstitutional. Works published prior to 1978 have no differentiation in copyright term between works made for hire and works with recognized individual creators.
In the , even if a Member State provides for the possibility of a
to be the original rightholder (such as is possible in the UK), then the duration of protection is in general the same as the copyright term for a personal copyright: i.e., for a literary or artistic work, 70 years from the death of the human author, or in the case of works of joint authorship, 70 years from the death of the last surviving author. If the natural author or authors are not identified, nor become known subsequently, then the copyright term is the same as that for an anonymous or pseudonymous work, i.e. 70 years from publication for a liter or, if the work has not been published in that time, 70 years from creation. (Copyright durations for works created before 1993 may be subject to transitional arrangements).
An exception is for scientific or critical editions of works in the public domain. Per article 70 of the German copyright law, editions as the result of scholarly or scientific analysis have a copyright length of 25 years. Therefore, the editor of an urtext score of an opera by Beethoven would only receive 25 years of protection, but the arrangement of the full orchestral part for piano would receive a full 70 year protection - timed from the publication of the piano arrangement and not the death of the editor. Editing is a proper work-for-hire activity.[]
US Copyright Office, .
Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)
Schiller & Schmidt Inc. v. Nordisco Corp., 969 F2d 410 (1992)
, retrieved April 28, 2009
, retrieved April 15, 2011
Sound Recordings as Works Made for Hire
retrieved April 17 2012
Peter B. Hirtle, .
Section 11,
as amended to 2005. As posted by R. G. C. Jenkins & Co., patent law office. Accessed October 25, 2007.[]
W. R. Cornish and David Llewelyn, Intellectual Property: Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 5th ed. (London : Sweet & Maxwell, . . .
Article 1, , Directive 93/98/EC.
In the UK see for example , and links from that page.
at the . Archived from < April 2000. Accessed October 25, 2007.
Garon JM, Ziff ED.
Minnesota Journal of Law, Science & Technology. ):489-527. Accessed January 9, 2013.
Copyright codes of various countries pertaining to Work For Hire:
United States
. An information circular provided by the U.S. Government Copyright Office.
. Works Made For Hire Complete.
in USC section number 101 of Title 17 of U.S. Code. Provides definitions of various kinds of "Work for hire"; "" based on WFH; and many other definitions of pertinent terminology used in the U.S. Copyright Code.
at . (Searchable site)
: Hidden categories:职务作品,works made for hire,音标,读音,翻译,英文例句,英语词典
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1)&&works made for hire
The Copyright Law provides different rules of copyright ownership for two distinctive types of works: corporate works and special works made for hire.
《著作权法》同时规定了"法人作品"和"特殊职务作品"及其两者不同的著作权归属规则,导致在实践中难以区分这两类作品。
However, prior to the promulgation and implementation of the current copyright law of the PRC, the creation activity of works made for hire and works of legal entity are universal.
然而在我国现行《著作权法》颁布实施之前,职务作品和法人作品的创作活动是很普遍的。
2)&&Non-post works
非职务作品
3)&&person who creates work-for-hire
职务作品创作人
4)&&special works made for hire
特殊职务作品
The Copyright Law provides different rules of copyright ownership for two distinctive types of works: corporate works and special works made for hire.
《著作权法》同时规定了"法人作品"和"特殊职务作品"及其两者不同的著作权归属规则,导致在实践中难以区分这两类作品。
5)&&civilian duty
公务员(职务)作为
6)&&vocational working tasks
职业工作任务
This article is based on the analysis of the vocations and selected two typical vocational working tasks as an item,which leads the students to make and carry out the plans,according to its working process.
以职业分析为基础,精选两个典型的职业工作任务为项目,引导学生按照其工作过程制定计划、实施计划,师生共同检查、评估和交流工作结果。
补充资料：《关于高等学校教师职务名称及其确定与提升办法的暂行规定》
&&&&　　中华人民共和国国务院于日颁发试行的一项规定。目的是为了鼓励高等学校教师不断提高政治业务水平，努力做好教学工作和科学研究工作。　　　　《暂行规定》规定，高等学校教师职务名称定为教授、副教授、讲师、助教 4级；教师职务名称的确定与提升，以思想政治条件、学识水平和业务能力为主要依据。《暂行规定》对各级职称的具体条件和审批办法等作了规定。《暂行规定》颁布后，对推动高等学校教学、科研工作，加强高等学校教师队伍的建设，起了一定的作用。但在"文化大革命"期间，高等学校确定和提升教师职称的工作中断。1978年 3月，国务院批转了教育部《关于高等学校恢复和提升教师职务问题的报告》，决定恢复高等学校教师职称,并开展提升教师职称工作。为了使高等学校教师提职工作经常化、制度化，教育部于1982年 2月又下达了《关于当前执行〈暂行规定〉的实施意见》，对《暂行规定》作了一些补充。　　
说明：补充资料仅用于学习参考，请勿用于其它任何用途。17.语篇翻译_百度文库
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