Understanding “Work For Hire”

Who Owns The Work Of A Photographer?

New clients, when working with a professional photographer for the first time, are often mistaken in regards to ownership of the images produced. They often think that they will own the results of the photographer’s efforts – just like they would own a custom desk built by a craftsman. This is absolutely not the case when it comes to intellectual property, such as photographs.

The term “Work For Hire” is critical to this distinction. If the photographs are created under the precise terms of a “Work For Hire” relationship, then the efforts of the photographer’s labor belong to the client (or employer). If these precise terms are not met, then the photographer owns the images and the client’s right to use them is controlled by a license.

Photographs, music, and computer code are all examples of intellectual property because they cannot be touched and yet they can be easily duplicated. Don’t mistake the manifestation of the photograph (as a print), the music (as a CD) or computer code (purchased on disk) with the intellectual property itself.

The manifestations of intellectual property (photographs, music CDs, computer disks) are personal property that can be bought and sold. Owning a print of a photograph does not give you the right to reproduce it. Buying the latest album by your favorite artist does not give you the right to reproduce that album and sell or give away copies (remember how Napster paved the way for iTunes?). The right to reproduce intellectual property is called “copyright” – catchy, I know.

Unless one of two specific sets of requirements is met, the ownership of the copyright will remain with the photographer. However, if the conditions are met, then (and only then) will the copyright will be owned by the photographer’s employer or client.

Test 1 – If the photographer is an employee or statutory employee, then the photographs are “Work For Hire” and the employer owns the copyright. Even people who think they are independent contractors may be statutory employees. There are many tests to determine the nature of the relationship. They include (but are not limited to):

employer control over work – employer specifies how work is done, provides a place and tools for performance of work
employer control over employee – employer controls the schedule, has the right to require employee to do other assignments, has the right to hire the employee’s assistants
conduct of the employer– in business to produce specific works,

Test 2 – For work by an Independent Contractor to be considered “Work For Hire”, three criteria must be met. They are:

the work must be “specially commissioned” by the client
before commencement of the work, a written agreement must exist between the photographer and client that specifically states that the job is a “Work For Hire”
the work must fall within one of following nine narrow categories:

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

Determining Whether A Work Is Made For Hire

from the US Copyright Office – Circular 9 “

Whether or not a particular work is made for hire is determined by the relationship between the parties. This determination may be difficult, because the statutory definition of a work made for hire is complex and not always easily applied. That definition was the focus of a 1989 Supreme Court decision (Community for Creative Non-Violence v. Reid, 490 U.S. 730 [1989]). The court held that to determine whether a work is made for hire, one must first ascertain whether the work was prepared by (1) an employee or (2) an independent contractor.

If a work is created by an employee, part 1 of the statutory definition applies, and generally the work would be considered a work made for hire. IMPORTANT: The term “employee” here is not really the same as the common understanding of the term; for copyright purposes, it means an employee under the general common law of agency. This is explained in further detail below. Please read about this at “Employer-Employee Relationship Under Agency Law.”

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

Click here to read the full source from the US Copyright Office Circular 9

Click here to download USCO Circular 9 as a PDF.

More Information On Work For Hire

American Society of Media Photographers (ASMP) – Work For Hire

Professional Photographers of America (PPA) Position Statement on Work For Hire Agreements

PhotoAttorney.com (Carolyn E. Wright) Q&A on Work For Hire

A Final Word About This Information

I am not an attorney. Do not rely upon this information to make legal decisions. It is for general informational purposes only. If you need legal help, hire a qualified attorney. You could consult this site to help find one. Check also at PhotoAttorney.com and your professional photo associations (ASMP, PPA, APA, etc.)