Works Made for Hire: Review of Legislation and Practice

Do employees or employers own the copyrights to works for hire? INTA’s Copyright Committee, International and Legislative Subcommittee recently investigated this issue to gain clarity into current regulation of works made for hire. The Subcommittee has compiled the results in a new comprehensive report, “Works Made for Hire: Review of Legislation and Practice,” which demonstrates wide variations among jurisdictions around the world on this subject.

The report is an outgrowth of the Subcommittee’s analysis and comments on several draft copyright laws in different jurisdictions. In working on this, Subcommittee members realized the expediency for the Association to possibly take a position on copyright work for hire issues, given that the copyright ownership of logos, marks, and other brand-related graphics created by an employee or independent contractor constitutes an increasingly important subject for INTA members.

As a first step toward this, they created a cross-subcommittee task force to collect information on the regulation of works for hire among jurisdictions worldwide.

As it turns out, the issue on “who is the holder of moral and economic rights to the work for hire”—and “employee’s works” and “commissioned works” in those jurisdictions that do not recognize the “work for hire” doctrine—differ from jurisdiction to jurisdiction.

The goal of the Task Force was to create an overview of the issue, which would be easily accessible and comparable. Toward this end, the Task Force developed a comprehensive questionnaire applicable to every jurisdiction and sent the survey to INTA members in various jurisdictions. The group verified the dozens of responses and combined them into an extensive analysis which constitutes the main part of the report.

In the event of a multijurisdictional case addressing ownership of copyrightable works created by an employee and/or independent contractor and covering several jurisdictions, the report can serve as an initial resource summarizing the various legal issues around work for hire regulations in different jurisdictions.

The study covers 60+ jurisdictions and includes the following:

• General regulation of the “work for hire” doctrine or essentially similar doctrines related to regulation of employee’s and commissioned works present in the legislation;
• Specific provisions related to logos, marks, or any other brand-related works created as the work for hire;
• Criteria of works to be determined as work for hire;
• Possibility of copyright registration of the work for hire;
• Term of protection of such works;
• Division of copyright to work for hire between the employer and the employee;
• Presumption of ownership to the work for hire in the absence of a respective contract;
• Moral rights aspect; and
• Important court practice regarding works for hire.

The study results demonstrate that “who is the holder of moral and economic rights to the work for hire” differs among jurisdictions, with a variety of legal regulations on the issue. The doctrine of “work for hire” is common in only a few jurisdictions, while others have legislative regulation of “works made in course of employment” (employee’s works) and “commissioned works.”

The study also revealed that it is a common practice for various jurisdictions to divide moral rights and economic rights to works made for hire; the first are tailored to a creator (employee), while the latter usually belong to an employer. As for the brand-related works which are created in the course of employment, they are deemed to be used by an enterprise for its commercial activity and mainly do not have different regulations from other works made for hire.

According to the analysis of the results, in most of the jurisdictions worldwide the author is always the holder of the moral rights; they cannot be transferred to the employer and are inalienable. However, some moral rights, such as the right to be named as the author, are subject to contractual waivers (for example,  Germany).

Regarding economic rights, the analysis showed different legislative approaches. In common law jurisdictions, such as Australia, the United Kingdom, and the United States, ownership for the creative works of employees made in the course of employment duties vests in an employer. At the same time, civil law jurisdictions, such as France, Germany, and Ukraine, vest initial ownership of such a work in the employee; the exception is software, whose ownership vests in the employer.

The “Works Made for Hire: Review of Legislation and Practice” report—available only to INTA members—may be regarded as a first step in establishing INTA’s general position on the question whether brand owners should own the copyrights in brand-related materials developed on their behalf.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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