Editing Work for hire (section)

=== Commissioned works by non-employees ===

If a work is created by an independent contractor or freelancer, the work may be considered a work for hire ''only'' if all of the following conditions are met:
* the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
* the work must be specially ordered or commissioned;
* there must be a written agreement between the parties specifying that the work is a work made for hire by use of the phrase "work for hire" or "work made for hire."<ref name="circ30"/>

In other words, mutual agreement that a work is a work for hire is not enough. Any agreement not meeting all of the above criteria is not a valid work for hire agreement and all rights to the work will remain with the creator. Further, courts have held that the agreement must be negotiated, though not signed, before the work begins. 

According to case law, retroactive contractual designation as a work for hire is not permitted.<ref>Schiller & Schmidt Inc. v. Nordisco Corp., 969 F2d 410 (1992)</ref> Furthermore, a valid work-made-for-hire agreement must be signed by ''both'' parties (the creator of the work and the commissioning party who is to be considered the author). <ref>Schiller & Schmidt Inc. v. Nordisco Corp., 969 F2d 410 (1992)</ref>

When relying on agreements in which creators transfer rights to a hiring party ([[copyright transfer agreement]]), a hiring party often finds that it has only limited scope to alter, update, or transform the work. For example, a motion picture may hire dozens of creators of copyrightable works (e.g., music scores, scripts, sets, sound effects, costumes) any one of which would require repeated agreements with the creators if conditions for showing the film or creating derivatives of it changed. Failing to reach agreement with any one creator could prevent the showing of the film entirely. To avoid this scenario, producers of motion pictures and similar works require that all contributions by non-employees be works made for hire.<ref>{{cite web |url=https://www.fwrv.com/memorializing-relationships-early-pays-off-later-part-2-does-a-film-producer-make-a-mistake-by-not-entering-into-work-for-hire-agreements-with-film-crew-talent-writers-and-other-independent-contrac/ |title=Memorializing Relationships Early Pays Off Later: Does a Film Producer Make a Mistake By Not Entering Into Work For Hire Agreements with Film Crew, Talent, Writers and Other Independent Contractors Whom She Hires? |last=Rosini |first=Neil |date=March 5, 2019 |website=FWRV.com |access-date=September 12, 2022}}</ref>

On the other hand, a work for hire agreement is less desirable for creators than a copyright transfer agreement. Under work for hire, the commissioning party owns all rights from the very start even if the contract is breached, whereas under a transfer of rights, the creator can hold back the rights until all terms of the contract are fulfilled. Holding back the rights can be a forceful tool when it is necessary to compel a commissioning party to fulfill its obligations.