Editing Work for hire (section)

=== History ===

==== Early doctrine and the Copyright Act of 1909 ====

[[File:The Great Wallace Shows circus poster.jpg|thumb|right|''[[Bleistein v. Donaldson Lithographing Co.]]'' (1903), a case regarding the copyright status of advertisements such as this one, is cited as an early example of the work for hire doctrine.]]

The work for hire doctrine was first recognized by the [[Supreme Court of the United States]] in ''[[Bleistein v. Donaldson Lithographing Co.]]'' (1903), a case regarding the copyrightability of advertisements created by employees of a lithography company. The Court upheld the employer's ownership of the works, implicitly recognizing that works created by employees in the course of their duties could be owned by the employer.<ref name="Brattleboro-1966">{{Cite court|litigants=Brattleboro Publishing Co. v. Winmill Publishing Corp.|url=https://law.justia.com/cases/federal/appellate-courts/F2/369/565/261281/|vol=369|reporter=F.2d|opinion=565|court=2d Cir.|date=1966|quote=This so-called "works for hire" doctrine was recognized earlier by the Supreme Court in ''[[Bleistein v. Donaldson Lithographing Co.|Bleistein v. Donaldson Lithography Co.]]''... the copyright to certain advertisements created by an employee during the course of his employment, belonged to his employer.}}</ref>

The doctrine was later codified in the [[Copyright Act of 1909]]: "...the word 'author' shall include an employer in the case of works made for hire."<ref name="act1909">{{Cite wikisource|title=Copyright Act of 1909|wslink=Copyright Act of 1909|publisher=60th United States Congress|date=March 4, 1909}}</ref> Although the 1909 Act did not explicitly define the term "work made for hire", courts began to apply what became known as the "instance and expense" test.<ref name="playboy1997">{{Cite court|url=https://law.justia.com/cases/federal/district-courts/FSupp/960/710/1458384/|litigants=Playboy Enterprises, Inc. v. Dumas|vol=960|reporter=F. Supp.|opinion=710|court=S.D.N.Y.|date=1997}}</ref> According to this standard, if a work was created at the request and cost of the hiring party, that party was presumed to own the copyright. In addition, the Act did not expressly address commissioned works, which left a broad scope for interpretation.<ref name="peters-2000-sr">{{Include-USGov |url=http://www.copyright.gov/docs/regstat52500.html |title=Sound Recordings as Works Made for Hire: Statement of Marybeth Peters, the Register of Copyrights, before the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary|last=Peters |first=Marybeth |author-link=Marybeth Peters |website=Copyright.gov|date=May 25, 2000 |publisher=[[United States Copyright Office]]|access-date=March 9, 2015}}</ref> Courts extended the doctrine to cover not only employees but also independent contractors, particularly in industries like [[illustration]] and [[music publishing]].<ref name="Brattleboro-1966"/>

The "[[#Teacher exception|teacher exception]]", an exception to the work-for-hire doctrine for [[Academic staff|faculty members]] at colleges and universities, was articulated in a series of court cases under the 1909 Act. For example, in ''Williams v. Weisser'' (1969), [[UCLA]] anthropology professor B.J. Williams successfully asserted common-law copyright in the content of his lectures against a company that was selling lecture notes to his students. In justifying Williams' copyright ownership of the lecture contents, the court explained: "No reason has been suggested why a university would want to retain ownership in a professor's expression. Such retention would be useless except possibly... for making it difficult for the teacher to give the same lectures, should he change jobs." It also cited precedent from the English court system, including the cases ''Abernethy v. Hutchinson'' and ''Caird v. Sime'', establishing that professors and lecturers held common-law copyright to their lecture materials.<ref name="townsend-teacher-exception-2003">{{cite journal|url=https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1383&context=mjlst|last=Townsend|first=Elizabeth|title=Legal and Policy Responses to the Disappearing "Teacher Exception," or Copyright Ownership in the 21st Century University|journal=Minnesota Intellectual Property Review|volume=4|issue=2|date=2003|pages=209-283|access-date=May 21, 2025}}</ref>

Under the 1909 Act, copyrights lasted for an initial term of 28 years, but could be [[Copyright renewal in the United States|renewed for another 28 years]]. For most works, even if an author had assigned all of their rights to another entity, such as a publisher or record company, during the first term, the copyright would automatically revert to the author at the beginning of the renewal term. In the case of works made for hire, there was no automatic reversion, and the renewal copyright vested in the current owner of the copyright, whether the original hiring party or someone who had obtained the copyright from them.<ref name="peters-2000-sr"/>

==== 1960s–70s copyright law revision ====

{{Image frame
|width=280
|content=[[File:A Raisin in the Sun (1961 film poster).jpg|130px|alt=The poster for the film "A Raisin in the Sun"]][[File:Kwame Nkrumah-TIME-1953.jpg|150px|alt=The cover of an issue of Time magazine]]
|caption=[[Film]]s and [[collective work]]s such as periodicals were among the kinds of works proposed to be eligible under the specially-commissioned prong of the revised work-for-hire definition, owing to the large numbers of people involved in their creation.
}}

The work-for-hire doctrine was revamped during the copyright law revision efforts of the 1960s, which culminated in the [[Copyright Act of 1976]]. After extensive negotiations supervised by Congress and the Copyright Office, representatives of authors, composers, book and music publishers, and motion picture studios settled on the two-pronged approach now enshrined in the 1976 Act, which encompasses both works made by employees and certain types of specially ordered and commissioned works:

* contributions to [[Collective work (US)|collective works]], such as [[periodical]]s, [[anthology|anthologies]], and [[encyclopedia]]s;<ref name="collective-work">{{USC|17|101}}: "A 'collective work' is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole."</ref>
* parts of [[motion pictures]] and other [[audiovisual]] works;
* [[translation]]s;
* supplementary works, such as [[foreword]]s, [[afterword]]s, and [[illustration]]s for books;
* [[Copyright in compilation|compilations]];
* "instructional texts", including any "literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities";
* [[Exam|tests]] and associated answer material; and
* [[atlas]]es.<ref name="specially-ordered">{{USC|17|101}}: "(2) a work specially ordered or commissioned for use... an 'instructional text' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."</ref>

The question of whether each type of work should be eligible to be commissioned as a work made for hire hinged on the benefits and drawbacks of making them subject to the author's right to [[#Termination of copyright transfers|terminate a transfer of copyright]]. Introduced in the 1976 Act as a spiritual successor to the automatic reversion of [[Copyright renewal in the United States|renewal copyright]], the termination right allows authors to reclaim copyrights to their works if they originally owned the copyrights. This provision does not apply to works originally created under work-for-hire arrangements.

During these negotiations, each of the nine categories was proposed by a particular copyright-based industry. Works in these categories tended to be done by freelance authors at the instance, direction, and risk of a publisher or producer, and it was argued that it would be unfair to allow such authors to terminate assignments of rights. Additionally, motion pictures and collective works were customarily created by large groups of people, and companies argued that allowing rights in these works to revert to individual contributors would risk fragmenting ownership and jeopardizing the companies' long-term ability to commercialize the works.<ref name="peters-2000-sr"/>

==== Sound recording debate ====

[[File:"Drive" by The Cars US vinyl A-side.png|thumb|right|The passage of an amendment classifying [[sound recording]]s as subject matter eligible to be works made for hire in 1999 sparked a debate over artists' rights in their recorded music.]]

Although copyright protection for [[sound recording]]s was being contemplated contemporaneously with the mid-1960's debate over works made for hire, they were never proposed or considered for inclusion as a category in the specially ordered or commissioned work made for hire provision. Former Register of Copyrights [[Marybeth Peters]] speculated that "record companies did not seek to include sound recordings" among these categories because they were typically produced in recording studios where record companies exercised considerable control over the production process. This allowed record companies to assert that featured artists were "employees" creating the sound recordings in the course of an employment relationship, satisfying the first prong of the 1976 work-for-hire definition.<ref name="peters-2000-sr"/>

In November 1999, a work for hire–related amendment was inserted into the [[Consolidated Appropriations Act, 2000|Satellite Home Viewer Improvement Act of 1999]], adding sound recordings to the list of categories that could qualify as specially commissioned works made for hire.<ref name="peters-2000-sr"/><ref name="shva-1999">{{cite USGov|archive-url=https://web.archive.org/web/20040225105114/http://bernie.house.gov/sat/shva_report.asp |url=http://bernie.house.gov/sat/shva_report.asp|title=Conference Report on H.R. 3194, Consolidated Appropriations Act, 2000|agency=United States House of Representatives|archive-date=February 25, 2004 |access-date=May 22, 2025 |quote=(d) Work Made for Hire: Section 101 of title 17, United States Code, is amended in the definition relating to work for hire in paragraph (2) by inserting 'as a sound recording,' after 'audiovisual work'.}}</ref> This resulted in backlash from [[recording artist]]s, who voiced concern that the amendment would strip them of their [[#Termination of copyright transfers|termination rights]] in sound recordings transferred to record labels.<ref name="wired">{{cite web|url=https://www.wired.com/2000/08/rule-reversal-blame-it-on-riaa/|title=Rule Reversal: Blame It on RIAA |date=August 10, 2000 |website=[[Wired (magazine)|Wired]] |last=King |first=Brad |access-date=May 22, 2025}}</ref> Record companies argued that it was a technical amendment that merely clarified how existing law applied to industry practice, since the majority of sound recordings would have already qualified as contributions to collective works ([[album]]s). However, in a 2000 testimony before the [[House Judiciary Committee]], Peters speculated that the amendment might "prove to be anything but technical" if the music industry shifted to newer distribution models in which individual tracks could be unbundled from albums and [[Music download|downloaded separately]].<ref name="peters-2000-sr"/>

In August 2000, the [[Recording Industry Association of America]], representing record labels, and the [[Recording Artists' Coalition]] and other groups representing recording artists jointly agreed to recommend the repeal and retroactive cancellation of the work-for-hire amendment.<ref name="wired"/> Congress repealed the amendment via the Work Made for Hire and Copyright Corrections Act of 2000, which also stipulated that the amendment should be treated as if it never happened.<ref name="hr5107-2000">{{cite USGov|url=https://www.congress.gov/bill/106th-congress/house-bill/5107/text |title=H.R.5107 - Work Made for Hire and Copyright Corrections Act of 2000 |date=October 27, 2000 |agency=106th United States Congress |access-date=May 22, 2025}}</ref>