The New Type of Copyright Owners

Our colleges and universities are producing more English,
philosophy, and journalist majors in this decade than ever before. The number
of recent graduates who desire to be self-published writers is dwindling,
because most newly minted graduates are burdened with the ever increasing price
of student loan debt. These proficient writers are entering the workforce as
employees or contract labors; ultimately changing the face of copyrights. 
Generally the author/creator of a work owns the copyright in
that work. However, the Copyright
Act
allows the owner of the copyright to pass to another person
under the “work made for hire” doctrine.  The “work made for hire”
doctrine allows the ownership of the copyright to pass not to the
author/creator of the work but to the employer or benefactor of the
author/creator.  Therefore, business owners and writers need to be aware
of the “work made for hire” doctrine and how it affects copyright ownership.
The Supreme Court, in Community
for Creative Non-Violence v. Reid
, has expressed that the ownership of a
copyright can vest in someone other than the creator/author in two instances
when the work is created: 1) by an employee within the scope of his or her
employment and; 2) for a specially ordered commissions in which the parties
expressly agree in a written instrument stating that the work is a “work made
for hire.” In both instances the copyright ownership passes to the person
paying for the work. Therefore, in order to determine if a work is “made for
hire” it must be created by either an employee or an independent
contractor. 
In determining whether an employer/employee relationship
exists for purposes of a “work made for hire,” courts turn to general
principles of agency law.  In order to determine if there exists
employer/employee relationship between the writer and business owner there has
to be some sort of control the hiring party exerts over the hired party. 
This control can be manifested through: the ownership of the tools and
instruments used to create the work; hiring party dictating the length of time
spent working; hiring party dictating vacation days; hiring party dictating
methods of payment; type of hired party’s benefits; and the tax treatment of
the hired party.  Therefore, if the hiring party exerts control that is
typical to that employer over its employee, an employer/employee relationship
will likely be created.    
Not only must an employee/employer relationship exist, the
work that is created must fall within the scope of the employee’s job
description in order for the work to be a “work made for hire.” In order to
determine if the work that is created falls within the employment scope courts look
at whether: the work is part of regular business of the employer; the employer
directs the work that is created; and if the employer has the right to assign
additional projects.   If the employer does create that type of work
in its regular business and the employer has control over the work that is
being created then the work will likely be created within the scope of the
employment.  Therefore, if the work falls within the scope of employment
the employer will own the copyright in that work.
However, if there is not an employer/employee relationship,
then the author/creator is typically an independent contractor. If the
author/creator is an independent contract the ownership of the copyright can
still vest in the hiring party. In order for the hiring party to own the
copyright the work must be one of nine types of works and the parties expressly
agree, in a written instrument, that the work shall be a “work made for hire.”
The nine types of work that are permissible to be a “work made for hire” are: 1)
contribution to a collective work; 2) part of a motion picture or other
audiovisual work; 3) translation; 4) supplementary work; 5) compilation; 6)
instructional text; 7) test; 8) answers material for a test and; 9) an atlas.
In addition, the hiring party and the hired party must execute a contract that
explicitly states that the work be a “work made for hire.”
As business owners and writers enter into joint ventures
that have the possibility of creating works that are copyrightable. They need
to be mindful of the agreements that they enter into. Those agreements will
ultimately affect the ownership of the copyrights.