Compendium of U.S. Copyright Office Practices, Third Edition
- The extent of the hired party’s discretion over when and how long to work.
- The hired party’s role in hiring and paying assistants.
- Whether the hiring party is in business.
- Whether the work is part of the regular business of the hiring party.
- Whether the hiring party provided employee benefits to the hired party.
- The tax treatment of the hired party.
- Whether the work is the type of work the hired party was authorized to perform.
- Whether the work occurs substantially within the authorized work hours and space limits of the hired party.
- Whether the work is actuated, at least in part, by a purpose to serve the hiring party.
See id. at 751–52 (citing Restatement (Second) of Agency § 220(2) (1958); U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F. 3d 1009, 1015 (9th Cir. 2012).
The following examples illustrate some of the factors that may indicate whether a work does or does not qualify as a work made for hire.
Work created by an employee
- Dave Muller is a full time chemist for Continental Chemicals. Dave created a computer program that evaluates the company’s products. By eliminating the need to perform mathematical calculations by hand, the program improved the efficiency of the company’s operations. Continental subsequently asked Dave to develop similar programs for its other products. Dave wrote and tested these programs at home using his personal computer. He did not receive overtime or any additional pay for creating these programs. Each program is considered a work made for hire. Although Dave was not hired as a computer programmer, he was employed by Continental when he wrote these programs and he wrote the programs, at least in part, to further the company’s interests. Developing these programs was incidental to his responsibilities because they improved the quality control of the company’s operations. Dave specifically created the programs for the company’s products and it is unlikely that he would do this type of work on his own. In the application to register the program, Continental Chemicals should be named as the author and the work made for hire box should be checked “yes.”
Work created by an employee acting within the scope of his or her employment
- Lois Lang has worked part time for the Georgetown Gazette for five years. She is expected to write at least five articles per week and she does most of her work at the paper’s office. She is paid on a monthly basis and income taxes, social security, and medicare are withheld from her paycheck. The Gazette reimburses Lois for her
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12/22/2014
