Work for Hire

Work for hire is the US copyright-law concept under which an employer (not the creator) is treated as the original author and copyright owner. Sometimes written "work made for hire," it applies under federal law in only two specific circumstances: (1) the work was created by an employee within the scope of their employment, or (2) the work was specifically commissioned for one of nine enumerated categories AND the parties signed a written agreement before the work was created stating it would be a work for hire. It is the legal mechanism that ensures the company (not the individual creator) owns IP created by employees, and the most-commonly-misunderstood concept in startup contractor relationships.

The two qualifying paths: (1) Employee work within scope of employment: work created by a W-2 employee as part of their normal job duties is automatically work for hire owned by the employer. The factors that determine "employee" status: control over how work is done, provision of tools and equipment, payment method (salary vs project-based), tax treatment (W-2 vs 1099), employee benefits, and the standard common-law tests. (2) Specifically commissioned works in nine enumerated categories: only certain categories of works (contributions to collective works, parts of motion pictures or audiovisual works, translations, supplementary works, compilations, instructional texts, tests, answer materials, atlases) can be works for hire when commissioned from a non-employee, AND only if there's a written agreement signed before work begins stating it's a work for hire. Importantly: software code is NOT in the nine enumerated categories. This means software work by independent contractors is typically NOT work for hire by default; the contractor retains copyright unless they sign an IP-assignment agreement explicitly transferring rights to the company. The 2020s reality: every startup using contractors for development must use IP-assignment agreements (not just "work for hire" language) because the work-for-hire doctrine doesn't apply to software commissioned from contractors. Most startup contractor agreements address this through belt-and-suspenders language: "this is work for hire AND contractor assigns all rights to company" to cover both bases.

What founders get wrong: Assuming a contractor agreement that says "this is a work for hire" actually transfers ownership of software work. It usually doesn't, because software isn't in the work-for-hire enumerated categories. The contractor agreement needs an explicit IP assignment clause in addition to work-for-hire language. Most modern contractor agreements use belt-and-suspenders language to cover both bases; if yours doesn't, fix it before the next contractor signs.

Related: Copyright · Trade Secret · NDA · Incorporation

FAQ

What is work for hire?
A US copyright-law concept under which an employer or commissioning party (not the actual creator) is treated as the original author and copyright owner of a work. Applicable in only two specific circumstances: employee work within scope of employment, OR specifically commissioned works in nine enumerated categories under written agreement signed before work begins.

Is software work by a contractor "work for hire"?
Usually no. Software is not in the nine enumerated categories that allow work-for-hire treatment for commissioned works. The contractor retains copyright by default unless they sign an IP-assignment agreement explicitly transferring rights to the company. Every startup using contractors for development needs IP-assignment agreements, not just work-for-hire language.

How do I make sure my company owns work created by contractors?
Use contractor agreements with belt-and-suspenders language: "this is a work for hire AND contractor assigns all rights, title, and interest in the work to Company." The work-for-hire language covers the cases where it applies; the IP-assignment language covers everything else (especially software, which isn't in the work-for-hire enumerated categories).