work for hire

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A work for hire, or work made for hire, refers to works whose ownership belongs to a third party rather than the creator. Under general copyright principals, a copyright becomes the property of the author who created the work. However, work for hire is an exception to this principle, and can be established through contract before a particular work is created. 

Copyright law defines works made for hire as (1) works prepared by an employee within the scope of his or her employment; or (2) a work specially commission for use as contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instruction text, as a test or answer for a test, or as an atlas, if the parties expressly agree in a written and signed agreement that the work shall be considered a work for hire. 

The Supreme Court has held also that a work can be deemed for hire when it is specially ordered or commissioned. Courts have articulated an "instance and expense" test for determining if a work is a work for hire. Under this test, a work is made for hire if it was incurred at a hiring party's "instance and expense." The Second Circuit has further explained that a work is made at a hiring party's instance and expense when the employer "induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out." 

Furthermore, for the purposes of the "instance and expense" test, "instance" refers to the extent to which the hiring party directed or participated in the creation of the work, and creative contributions or direction strongly suggests that a work is made at the hiring party's instance. It is also noteworthy that the authority to direct a work's creation itself is sometimes sufficient to satisfy the instance requirement and does necessarily have to be exercised. 

Next, when assessing the "expense" element, courts have focused on the nature of the payment. For example, a guaranteed payment is indicative of a work made for hire, whereas agreements that present the creator with royalties indicates against finding a work for hire relationship. Lastly, if the "instance and expense" test is satisfied, the presumption that a work is a work for hire can only be overcome by evidence of an agreement (i.e., contract) to the contrary. 

[Last updated in September of 2021 by the Wex Definitions Team]