The Law of "Work-Made-For-Hire"
Select Statutes and Cases

Kenneth D. Crews
Professor of Law
Associate Dean of the Faculties for Copyright Management

COPYRIGHT MANAGEMENT CENTER
Indiana University-Purdue University Indianapolis
530 West New York Street
Indianapolis, IN 46202-3225
Voice: 317-274-4400 Fax: 317-278-3326
http://www.copyright.iupui.edu

Revised: September 14, 2001

Part I: Selected Statutes

Provisions of the U.S. Copyright Act
Title 17, United States Code

Section 101 (excerpt):

A "work made for hire" is--
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Section 201:

§ 201. Ownership of copyright

(a) Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.

(b) Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to collective works. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

(d) Transfer of ownership.
(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of interstate succession.
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

(e) Involuntary transfer. When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

Part II: Selected Court Rulings

The University of Colorado Foundation, Inc. v. American Cyanamid, 880 F. Supp. 1387 (D.Colo. 1995) (finding summarily that a research article is a work-made-for-hire, and the copyright belongs to the university that employed the professors).

Hays v. Sony Corporation of America, 847 F.2d 412 (7th Cir. 1988) (suggesting the possibility of a teacher's exception to the doctrine).

Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987) (holding that the faculty members retain the copyright to a research article, but as a matter of university policy interpretation).

Manning v. Board of Trustees of Community College District No. 505 (Parkland College), 109 F.Supp.2d 976 (C.D. Ill. 2000) (holding that the work of a staff photographer belongs to the college under the work-made-for-hire doctrine, and that general statements in policy manuals and collective-bargaining agreements are insufficient to meet the requirement of a signed writing to shift ownership back to the photographer).

Vanderhurst v. Colorado Mountain College District, 16 F. Supp. 2d 1297 (D.Colo. 1998).

The college employed Vanderhurst "for over 22 years pursuant to a series of annually renewable employment contracts" as a professor and clinician in Veterinary Technology. In 1995 he published a "Veterinary Technology Outline," and ownership of it became part of the dispute between the instructor and the institution. According to the court:

The question, then, is whether the Outline is a "work prepared by an employee within the scope of his or her employment" under § 101(1). The Act does not define these terms. However, in Reid, the Court applied agency law to the Act. Id. at 751. (agency principles applicable to determine employment [**30] status and whether disputed work within scope of employment).

The term "scope of employment" has been defined as:

those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods . . . of carrying out the objectives of the employment.

Restatement (Second) Agency §§ 228-229; United States v. Smith, 810 F.2d 996 (10th Cir. 1987). Other factors which may be considered are whether: 1) it is the kind of work the person is employed to perform; 2) the work occurs substantially within work hours; and 3) the work is actuated, at least in part, by a purpose to serve the employer. Restatement (Second) Agency, § 228; Nimmer on Copyright p. 5-33 (1997).

Here, Vanderhurst alleges that the outlines were created "in the course of teaching at CMC." Second Amended Complaint, P69. Further, CMC policy § 110.1 states that a faculty member's duties include "professional service activities [including], but not limited to, course, program and curriculum development [and] course preparations. . . ." Def. Ex. 20.

It is undisputed that Vanderhurst prepared the Outline on his own time with his own materials. However, there is no genuine dispute that Vanderhurst's creation of the Outline was connected directly with the work for which was employed to do and was fairly and reasonably incidental to his employment. Further, creation of the Outline may be regarded fairly as one method of carrying out the objectives of his employment. See, Restatement (Second) Agency, § 228. I conclude, therefore, that pursuant to the "work for hire" doctrine, as of 1995, any copyright remaining in the Outline did not belong to Vanderhurst. Thus, I will grant defendants' motion for summary judgment on claim eight.

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