This contract tip is about the limitations of work-for-hire provisions.
Let's say a buyer signs a contract to hire someone to create a manual. The contract just says it is a work for hire. The buyer is happy, believing It owns the copyright in the work.
Or does it?
A little-known fact is that work for hire does not apply to all creative works. In the U.S., it only applies to copyrights that are contributions to collective work, part of an audiovisual work, translations, supplementary works, tests or instructional work, and atlases.
If the creation does not fit into one of those categories, it cannot qualify as a work for hire.
In this example, the manual does not qualify. The buyer is not happy.
The best way to guard against invalid work-for-hire assignments is also to include a broad assignment of copyright ownership in your contracts. This assignment acts as a fail-safe to make sure all the rights are assigned to the buyer.
You may think, “Why should I even bother including work for hire language if the assignment does what I need?”
Unless you are sure it is NOT work for hire, you should have both. There are advantages to being the first owner of a copyright. The work will not be subject to termination by the creator and has a different copyright term.
Have you seen work for hire improperly used in contracts you review?
