You, faithful reader, are inspired to write a song. You’ve written some of the lyrics and a few verses, but the chorus needs work, and the song needs some fine tuning. You have a great idea. You’ll invite your friend Taylor Swift* over to help finish the song. But since it was your idea for the song, and because Taylor is already rich and famous, and because you don’t like to share, you decide that you’ll have Taylor sign a work-for-hire agreement. You’ve heard about these work-for-hire agreements and understand that if you get her to sign it, you will own the entire song and Taylor will own nothing. So more money for you, right. Wrong! (Loud buzzing sound is heard).
Why is that? Because while the copyright act does state that works done pursuant to a work-for-hire agreement are owned by the hiring partner (that’s you), a work-for-hire only applies to these nine categories of works:
1) a collective work:
2) a part of a motion picture or other audiovisual work;
3) a translation;
4) a supplementary work;
5) a compilation;
6) an instructional text;
7) a test;
8) answer material for a test;
9) an atlas.
Do you see “songs” anywhere on this list? No. You know what else you don’t see on this list? Plays or paintings or sculptures or toys. None of these kinds of works fall into works made for hire.
In that case, how do you get the rights from Taylor? There are two ways.
The first way is simple, but not really practical. That is to hire Taylor as your employee. For any creative work done by an employee within the scope of their employment, the copyright is automatically owned by the employer and the employer is considered the author. That applies to all creative work and not just limited to the nine categories listed above. But since getting Taylor to agree to be your employee may be difficult, you might try this other way first.
That is to get Taylor to agree to assign her rights in the song to you. That is why most work-for-hire agreements have a provision that reads something like this.
Writer acknowledges that all results, product and proceeds of Writer’s services are being specially ordered by Purchaser and shall be considered a “work made for hire” for Purchaser . In the event that any of the results and proceeds of Writer’s services and/or any rights obtained by Writer for the benefit of Purchaser hereunder are not deemed to be a “work-made-for-hire” for Purchaser, Writer hereby irrevocably and exclusively assigns to Purchaser all right, title and interest in and to such results and proceeds and all rights to exploit the same throughout the universe, in perpetuity, in any and all media, whether now known or hereafter devised.
Isn’t an assignment the same thing as a work-for-hire? Well, it does almost the same thing except that both you and Taylor would be considered the “authors” of the song and, more importantly, after 35 years, Taylor would have the right to terminate the license and get the rights to the song back (a subject for another post).
The lesson is that if you are going to make someone sign a work-for-hire agreement, unless the work falls into one of these categories make sure that you include assignment language like the language above, in the agreement. Othewise, the agreement will not be effective.
* I used Taylor Swift solely to generate more web traffic. I am aware that your actual friend is Justin Bieber.