work made for hire

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A work made for hire, or work for hire, refers to works whose ownership belongs to a third party rather than the creator. For example, the employer is the author of the work completed and not the employee or actual creator of the work. When a work is deemed to be "made for hire," the employer owns all rights associated with the work under copyright law. An example of work made for hire is when an artist is commissioned to create a company logo. The company maintains the copyrights to the logo upon completion of the contract between the artist and company. 

Copyright law defines works made for hire as:

  • Works prepared by an employee within the scope of their employment; or
  • A work specially commissioned 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. 

In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court has held also that a work can be deemed for hire when it is specially ordered or commissioned. The Second Circuit, in Marvel Characters, Inc. v. Kirby, No. 11-3333 (2d Cir. 2013) has 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 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." 

  • 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. 
  • 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 July of 2024 by the Wex Definitions Team]