Editing Work for hire (section)

==== 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"/>