The Business Blog at Intuitive.com

Are guest blog entries "works for hire"?

I've been working on writer's guidelines for my Ask Dave Taylor blog and wanted to include some wording about my requirement that the rights to an article transfer to me when submitted. Why? Because I wanted to ensure that there'd never be any issues of our relationship going sour and them then insisting I pull the article and any references. Quite unlikely, but it's always good to cover your proverbial bases.

Here's the wording I was going to use:

Anything I get from you is considered a legal work for hire submission under prevailing US copyright law, which means that you give up ownership of the article, you don't retain copyright, and if we have a falling out down the road (which I, of course, hope doesn't happen) that the article remains my property and I can choose to leave it on the site. If you want to retain copyright, be able to publish it elsewhere, whatever, no worries, glad we hit this now: you won't be able to write for my site and I wish you terrific luck wherever you do end up publishing online. No hard feelings at all.

I twittered about it and got a comment back from Ben Oelsner, an intellectual property attorney with Kendall, Koenig & Oelsner PC telling me to be careful because work for hire is primarily intended only for employees, not contractors.

I asked him for more details, and here's what he generously explained:

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If you are hiring non-employee contractors to create copyrightable content for you, or you are accepting content contributions from individuals who are not employed by you, and you want to own such content, it is a good idea to require that the content creator assign all of his or her rights in such content to you, in addition to or instead of relying on "work for hire" concepts. Under copyright law, the author of the work owns that work and has rights to which an author is entitled. If a work is considered a work made for hire, there will be an effect on the term of the copyright and the ability of the owner to terminate copyright rights.

Although the general rule is that the person who creates a work is the author of that work, there is an exception to this principle for works called "works made for hire." If a work is "made for hire," the employer, and not the employee, is considered the author.
Section 101(1) of the Copyright Act expressly defines a "work made for hire" as a work prepared by an employee within the scope of his or her employment, so, if an individual is considered employee under copyright law, the employer will be the "author" of the work and therefore, the employer will own all of the copyright rights in the work and be entitled to the rights of authors under copyright law.

If an individual who is not considered an employee under copyright law creates a copyrightable work, that individual will be considered the author of the work and, therefore, the owner of that work. However, if that individual is hired to create the work or content contributions created by that individual are accepted online, under Section 101(2) of the Copyright Act, there is an exception this author principle that can make a copyrightable work created by a non-employee a "work made for hire." A non-employee created work can only be a work made for hire if both of the following two conditions are met. First, there needs to be a written agreement signed by both parties that states that the parties expressly agree that the work shall be considered a work made for hire. Second, the work must specially commissioned for use within specified categories. These categories are described in Section 101(2) as follows: "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. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for a 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."

If you can't make a strong argument that the created content falls within the categories described above, that content should not be considered a work made for hire under copyright law. If it's not a work made for hire by law, you, the person that hired the individual to create the work, won't be the "author" of the work, and therefore, you won't own the work.

What should you do to make sure you own the work? For any non-employee created work, you should have the author agree to assign all of his or her rights in the work created to you. You won't be the "author" for copyright purposes, but you will own all of the copyright rights in the work. A typical assignment provision may look like this:
You agree that all content that you provide to me will be my sole and exclusive property. You hereby irrevocably and unconditionally assigns to me all right, title, and interest worldwide in and to such content and all intellectual property rights to such content.
There are other terms that should be included in any copyright assignment, so you should contact your attorney for assistance in drafting any such agreement.

You will often see a "work made for hire" provision included in agreements with non-employee contractors. It should not be used in place of an assignment provision, but it can be used in addition to an assignment provision as a "belt and suspenders" option. However, if the contractor is an individual, it is possible that characterizing content as a work made for hire could have adverse consequences for you because it is possible that the contractor may be characterized as an employee for purposes of unemployment insurance and workers' compensation obligations (as a result of the relationship being treated as an employer-employee relationship). You and your attorney should analyze and determine the risk of including work made for hire language in any contract that you have with an individual.

See Circular 9 [PDF] on the Copyright Office web site for more information.

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The key thing that jumped out at me when I got this explanation from Ben was this line: the contractor may be characterized as an employee for purposes of unemployment insurance and workers' compensation obligations. That would be a very bad unintended consequence!

So instead I've been working on creating a content submission agreement that's focused on granting a license that offers the protections I seek. When I've nailed down the wording, I'll add it to this blog posting, but in the meantime, if you're considering hiring people to write for your blog or other site and have been categorizing them as works for hire, this should give you pause.

And thanks again to Ben Oelsner of Kendall, Koenig & Oelsner PC for his invaluable insight into this nuanced situation.