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Is a Work Made for Hire Clause Really Necessary on Film Projects?

As a filmmaker, producer, screenwriter, or anyone else involved in the production of a film, who owns the right to the copyright? Does the producer maintain copyright rights because he or she is the one in charge of the project? What about the production company as a whole, do they own copyright rights? What if you wrote the screenplay; it’s yours to copyright, isn’t it? Under certain circumstances, the work that you provide, either as an employee or as an independent contractor, may not technically be owned by you once it’s complete. It all depends on a little U.S. copyright law called a work made for hire clause.

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A work made for hire clause, or a work for hire agreement, is a technicality that comes up quite often in U.S. copyright law.

If you’re not familiar with work made for hire? There’s a good chance you’ll find yourself in a position in which you do NOT have the upper hand when it comes to retaining copyright rights to your work.

Say you’re a filmmaker, screenwriter, production company, or anyone involved in the production of a film. It’s important to understand what a work made for hire clause is and how it applies to your situation.

As well as what you can do to protect your copyright rights for the work that you provide.

What is Work Made for Hire Clause?

According to the United States Copyright office, Section 101 of the Copyright Act (title 17 of the U.S. Code) the work made for hire clause applies to works that, “are prepared by an employee within the scope of his or her employment”.

Or which represent all of the following:

  • Are commissioned or ordered specially; and
  •  
  • Both parties expressly agree in writing, that the work is considered work made for hire, and the written agreement is signed by both parties; and

The work is provided as part of one of 9 categories as listed below:

  1. A contribution to a collective work,
  2. As a part of a motion picture or other audiovisual work,
  3. A translation,
  4. As a supplementary work,
  5. A compilation,
  6. As an instrumental text,
  7. A test,
  8. As answer material for a test, 
  9. An atlas.

The work made for hire clause applies differently to employees and to contractors. Employees who work for a company and provide work as part of their employment do so under an implied agreement of work made for hire.

They were hired to perform the work, and any work they perform is owned by the employer. You probably already sort of know that any work you do for an employer is generally retained by them.

Even if you quit, get fired or otherwise leave the position, you don’t take your work with you. 

Independent Contractor Work

But what about work that you perform as an independent contractor? As a contractor, you might think that once you provide work, such as a screenplay, to the client that it is then owned by the client. However, this is not always the case!

In fact, many independent contractors are surprised to find out that the work they provide, such as a screenplay, can still be copyrighted by them, and NOT the client under certain circumstances.

Particularly, if there is not a signed work made for hire agreement that both parties agreed to.

Who Owns the Copyright of Work Made for Hire?

Determining who owns the copyright under a work made for hire, such as a screenplay or a sound recording that is produced for a film, can be challenging. Especially when there are multiple people involved who would like to stake claim to the copyright.

Who owns the copyright of the work all comes down to how the work was performed? And whether there was a work made for hire clause or agreement made between the parties involved?

If a sound recording is created by a staff engineer that works for a production company, the copyright rights to that sound recording are actually owned by the production company and NOT the individual staff engineer.

Contractors

However, if the engineer is contracted to create the sound recording as an independent contractor? And there is no signed agreement that states the recording was produced as work made for hire?

Then the individual who created the recording maintains the right to copyright it, not the production company that hired the contractor. 

Why is a Work Made for Hire Clause Important?

You can see, the work made for hire clause is important for several reasons. As a filmmaker or production company, including a work made for hire clause in your contractor agreements.

As well as in any employee work agreements will eliminate any potential ambiguity as to whether or not the work of your employees and contractors will be rightfully owned by you, or the creator, once it’s complete.

A simple work for hire clause that states that the work provided by the individual is in fact work made for hire.

And that both you and the individual creating the work are aware of the agreement (and the contract is signed by both parties) can ensure that you retain copyright rights to any work that you pay for from an employee, or an independent contractor. 

Additional Rules

Remember though, that U.S. Copyright law further states that when work made for hire agreements come forth from independent contractors, additional rules must apply.

And that not only must you have a work made for hire clause in your agreement. But also that the work provided by the contractor must have been specially ordered or commissioned by you.

It must fall into the nine categories previous listed in order for you to take over copyright rights from the original creator. 

For Clarity

Overall, a work made for hire clause is an important concept for anyone in the film industry to understand. So that there are no questions as to who retains copyright rights once work is provided.

If you have questions, or before you sign any legally binding contract or begin work on a film project.

We recommend consulting with an attorney to be sure that you understand whether you, or someone else, may obtain copyright rights to the work that you provide, or that you request.

After all, it’s important to know how to protect your assets, and copyright laws can be complicated. 

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