The author of the work is the person who actually creates the work. This person is the one who translates an idea into a fixed, tangible expression that is entitled to copyright protection.

In some instances, the person may be creating the work as a “Work Made For Hire”. This means that under certain employment conditions, the actual creator of a work is not the legal author of the work. For works created after January 1, 1978, a distinction was made between employees acting within the scope of their employment and the creation of the work by independent contractors.

To determine if it is a work made for hire, you need to look at whether the individual was an employee AND if the work was made during the scope of their employment.

When determining if someone is an employee, you should look at several factors, including the following:

1. The hiring party’s right to control the manner and means by which the work is created;
2. The skill required to create the work;
3. The source of the tools and ideas used to create the work;
4. The location of the work;
5. The duration of the relationship between the parties;
6. Whether the hiring party has the right to assign additional projects to the hired party;
7. The extent of the hired party’s discretion over when and how long to work;
8. The method of payment;
9. The hired party’s role in hiring and paying assistants;
10. Whether the hiring party is in business;
11. Whether the work is part of the regular business of the hiring party;
12. The provision of the employees benefits; and
13. The tax treatment of the hired party.

Once you determine that the individual is an employee, you then need to determine if the work was made during the scope of employment. Just because someone is an employee, it doesn’t mean that the work that was created was a work made for hire. You now need to look at the following factors to determine if it was a work made for hire:

1. Was the creation of the work within the employee’s job description;
2. Is the work of a type traditionally created by a person in the employee’s position;
3. Was it created during official hours;
4. Was it created on the employer’s premises;
5. Was the employee using the employer’s equipment; and,
6. Was the creation done with the aid of the employer’s support personnel;
7. Was the employee using information available through employment; and,
8. Was the work related to the employer’s projects.

If you are able to determine that the individual is an employee and the work was made during the scope of the individual’s employment, the work would then be deemed a “work made for hire” and the employer would be the owner of the copyright.

The information provided in this article is not legal advice and no attorney-client or confidential relationship is or should be formed by use of this article.