The "Work for Hire" doctrine assigns copyright ownership to employers or commissioning parties for works created under employment or specific contracts. It ensures clarity in ownership, balancing creators' rights with employers' or clients' interests, unless agreed otherwise.
Introduction
Copyright law grants a bundle of exclusive rights to the creators of original works from the moment of their creation and fixation. These rights may also extend to those deriving them through specific agreements. Among these provisions, the “work for hire” doctrine has gained prominence, particularly in employment and commissioned work scenarios. This doctrine holds that the employer or the commissioning party, rather than the creator, is considered the author of the work, thus owning the associated copyrights unless expressly agreed otherwise.
The Indian Copyright Act, 1957 (hereinafter “Copyright Act”) governs these principles in India. Under this Act, the “work for hire” doctrine is classified into two broad categories:
- Works created under employment or apprenticeship contracts.
- Works specifically commissioned for a particular purpose.
While the laws around the doctrine vary across jurisdictions, the underlying principle remains rooted in determining authorship and ownership of intellectual property (IP) in employment or commissioned relationships.
Background
Historically, the courts prioritized creators' ownership rights over works produced during employment. In Wheaton v. Peters[1], the U.S. Supreme Court emphasized that copyright belonged to the actual creator, even if employed by someone. This principle remained dominant until the late 19th century when employer ownership gained judicial recognition. By the 20th century, courts had adopted a rule allowing employers to claim copyrights over works produced by their employees, provided there was an agreement to that effect.
The doctrine of “work for hire” thus evolved as a departure from the traditional master-servant doctrine, where works created by an employee in the scope of their employment were presumed to belong to the employer. Over time, this rule has been codified in copyright statutes across various jurisdictions, shaping the modern understanding of the employer-employee relationship in IP law.
Interpretation of “Employee”
A pivotal aspect of the “work for hire” doctrine lies in determining whether the creator qualifies as an employee or an independent contractor. Various legal tests aid this interpretation:
1. Right to Direct and Control Test
This test examines whether the hiring party had the authority to supervise and control the creative process, irrespective of actual exercise of control. If such authority exists, the creator may be deemed an employee.
2. Agency Test
Based on agency principles, this test evaluates the relationship between the hiring and hired party. It considers factors such as control, scope of work, and duration of the relationship to establish whether the creator acts as an agent of the hiring party.
3. Actual Direct and Control Test
This stricter test determines that a work qualifies as “work for hire” only if the commissioning party actively supervises and controls the creation process. Mere reservation of the right to control is insufficient under this standard.
4. Formal, Salaried Employee Test
This test applies the strictest definition of “employee,” focusing on traditional employment markers like salary, tax withholding, and workplace obligations. Works created under such arrangements typically fall within the “work for hire” doctrine.
The “Work for Hire” Agreement
To clarify ownership and authorship, parties often execute a “work for hire” agreement. Such agreements include the following key elements:
- Identification of Parties: The agreement must unambiguously identify the employer and the creator, specifying the nature of their relationship.
- Statement of Intent: Both parties should affirm their willingness to enter into the agreement for mutually agreed purposes.
- Payment Terms: The agreement should detail compensation for the work performed.
- Scope of Use: It should outline the permitted uses of the work after the employment or contractual relationship ends.
- Breach Provisions: Remedies and consequences for non-compliance by either party must be explicitly stated.
In cases requiring customization or modification of pre-existing IP, a separate customization or amendment agreement is recommended. Such agreements can specify the extent of alterations while retaining the authorship of the original work, effectively functioning as a licensing arrangement. Employment contracts for independent contractors should also include clauses explicitly stating that works created during the contractual term will be treated as “work for hire.”
Jurisdictional Perspectives
India
Under the Indian Copyright Act, the doctrine of work for hire is governed by Sections 17(b) and (c)[2]:
- Section 17(b)[3]: In the absence of a contrary agreement, the commissioning party is considered the first owner of the copyright.
- Section 17(c)[4]: For works created under employment or apprenticeship contracts, the employer is deemed the copyright owner unless agreed otherwise.
The landmark case Indian Performing Right Society Ltd v. Eastern Indian Motion Pictures Association and Ors.[5] clarified the application of these provisions, particularly concerning works created by music composers and lyricists for films. Similarly, the Delhi High Court in Khemraj Shrikrishnadass v. M/s Garg & Co.[6] affirmed that copyrights are transferred to the publisher when works are created under consideration without contrary contractual terms.
USA
The U.S. Copyright Act (Title 17 of the United States Code) defines “work made for hire” under two categories:
- Works created by employees in the scope of their employment.
- Works specifically commissioned and falling under a statutory list of eligible categories.
In Community for Creative Non-Violence v. Reed[7], the U.S. Supreme Court established a framework for determining whether a work is created by an employee or an independent contractor. Employment relationships generally result in “work for hire,” while independent contractors retain ownership unless a written agreement states otherwise.
UK
The UK Copyright, Designs, and Patents Act, 1988 presumes that copyrights in works created within the scope of employment vest in the employer. For commissioned works, ownership depends on contractual agreements. Courts rely on the “integration test,” which assesses whether the work is integral to the employer’s business.
In Stevenson Jordan Harrison Ltd v. MacDonald & Evans[8], the court distinguished between “contract of service” (employment) and “contract for services” (independent contractor). This case underscores the importance of integration and control in determining copyright ownership.
Conclusion
The doctrine of “work for hire” is a key principle of copyright law, clarifying ownership in employment and contractual relationships. While jurisdictions like the UK, US, and India differ in approach, they share a reliance on clear agreements to determine ownership. In India, employer ownership of works created during employment is recognized unless otherwise agreed, with freelance and commissioned works governed by contract terms. As modern work evolves, explicit contracts defining ownership, usage, and licensing are crucial to balancing the interests of creators and employers while minimizing disputes. This doctrine underscores the importance of clarity in navigating copyright complexities.
[1] 33 U.S. (8 Pet.) 591.
[2] The Copyright Act, 1957, ss. 17(b), 17(c).
[3] Id. at s. 17(b).
[4] Id. at s. 17(c).
[5] 1977 AIR 1443.
[6] AIR 1975 Delhi 130.
[7] 490 U.S. 730 (1989).
[8] (1952) 1 TLR 10.
