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Doctrine Of Work For Hire Under Copyright Law

Copyright, a branch of intellectual property law, grants authors an exclusive, legally sanctioned claim to their works. Any creator of content is entitled to employ intellectual property laws, particularly copyrights, to safeguard their creations.

Violating copyright rules will have many legal ramifications. Even though intellectual property laws give the author of such content exclusivity, some of it is created under temporary or permanent employment agreements. How to manage this is determined by the concept of "Work for Hire". In the absence of a crystal-clear formal agreement between the parties, the Doctrine of Work for Hire governs copyright ownership.

The focus of the article at hand will be Work for Hire, famous cases, a comparison of two significant countries namely, India and the USA each of which has its own laws and regulations to deal with the Doctrine of Work for Hire, some noteworthy points that reveal the similarities and differences, and recommendations based on the thorough research.

Along with the history of the philosophy, its application to Work for Hire in the USA and India, as well as its advantages and disadvantages, will all be covered in this project. The cases of "Carter v. Helmsley-Spear", "Indian Performing Right Society Ltd. v Eastern Indian Motion Pictures Association and Ors. AIR1977SC144", and "Marco v. Accent Publishing Co., 969 F.2d 1547 (3d Cir. 1992"), which are some of the landmark cases under the Doctrine of Work for Hire under the copyright law, will also be covered in order to help you comprehend the idea.

Objective of the Study:
  1. To understand the concept of Doctrine of "Work for Hire" Under Copyright Law.
  2. To understand the different legal perspective of Work for Hire Doctrine, Under copyright law.
Scope of the study
This study is limited in the concept of "Work for Hire" along with the famous cases involved with this concept in India. Literature Review:
The below mentioned are the journals from Indian and international reputed journals being used by the researcher for comparative analysis between India and United States.
  • Preet S. Phanse, The doctrine of 'Work for Hire': A Critical Survey of US, UK & Indian Cases, Jus Corpus Law Journal.
  • Works Made for Hire Under the 1976 Copyright Act, Oxford university press.
  • comparative study- doctrine of work for hire, Lex research hub.
  • Jon L. Roberts, WORK MADE FOR HIRE: The Fiction, The Reality and The Impact Upon Software Development.
  • Harsh Kumar, Employer's Copyright vis-a-vis Author's Right: An Unresolved Legal Dilemma, Journal of intellectual property rights.
The researcher has gone through the above-mentioned journal articles where comparative analysis can be drawn by looking into these journal articles. Types Of Research:
The research is a doctrinal and explanatory. Research Questions:
  1. Whether there is a direct control by the employer or not?
  2. Whether there are enough legal provisions in India when compared with United States or not?
Research Methodology:
"The researcher has used primary and secondary sources to collect and present relevant data, employing the Doctrinal Method of research, along with Explanatory Method to complete it". Citation Style:
The researcher has used Oscola Style of Citation.

Copyright law plays a vital role in protecting creative works and ensuring that creators have the exclusive rights to their creations. One significant aspect of copyright law is the doctrine of "work for hire." This doctrine determines the ownership of a copyrighted work when it is created as part of an employment relationship or under a contractual arrangement. In this blog post, we will conduct a critical survey of the doctrine of "work for hire" in the United Kingdom, the United States, and India, highlighting key cases and their implications.[1]

The 'work for hire' provision governs a broad variety of activities when the work is produced by an employee acting in his official capacity while on the job. Both employees and independent contractors covered by such a contract are entitled to it. Although such works are the creation of an individual or employee, the employer enforcing such a contract is deemed to be the author due to the operation of law; for example, when some software is created by an engineer employed by a company or when a painter paints a portrait of his employer upon request.

In any of these situations, the work is regarded as being created "for hire" and cannot be falsely represented to be the author's own. By incorporating such a philosophy, a corporate organisation may add new flavours and components without altering its core function as an employer.

Copyright law grants a host of rights to the creator of a work as soon as it is made and fixed, as well as to anybody who derives those rights from the invention. However, under the broadening definition of "work for hire," unless the parties have expressly agreed otherwise, the "employer or another person for whom the work is generated" is deemed to be the work's author and is the owner of all rights derived from it.

The Copyright Act, 1957 (often known as the "Copyright Act") sets up the laws regulating copyrights in India. "Work for hire" is defined by the Copyright Act as two fundamental categories of production:
  1. Works produced under a contract of employment or an apprenticeship, and
  2. Specially commissioned pieces.
Just with other laws, the regulations governing work for hire vary from country to country. This article's goal is to illustrate how work-for-hire agreements function in each of their many countries by focusing on the specific laws that apply to them.

What is Copy Right?
The phrase "copyright" refers to a person's legal right to their intellectual property. The capability to duplicate is one way to define copyright. This shows that the original creators of the work and anybody to whom they provide permission are the only ones with the exclusive right to replicate the work.

Copyright legislation gives creators of creative material the exclusive right to reuse and duplicate such work for a certain amount of time. The copyrighted work becomes public domain after it has run its course. When someone creates anything that is seen as original and required significant mental effort, it becomes intellectual property that has to be protected from unlawful duplication. Examples of original innovations include:

Examples include books, artwork, poetry, songs with original music, computer software, unique architectural concepts, and website content.

An original output may be legally protected by the use of copyright. According to copyright law, a work is considered original if it was created by the author independently and without the use of any earlier works.

This kind of work is known as an Original Work of Authorship (OWA). Any author who produces an original work automatically acquires the copyright to it, preventing others from exploiting or copying it. If the need arises, the original owner may voluntarily register the copyright to strengthen their standing in the legal system.[2]

In the 19th century, courts showed a great deal of regard for the rights of staff authors. There was widespread agreement that the employee who produced the work, even while operating within the scope of their employment, was automatically the owner of the copyright from the time the U.S. Supreme Court's decision in Wheaton v. Peters until 1860. Employer ownership was accepted formally about 1860.

The employer held a default right to its employees' creative output throughout the first 10 years of the 20th century. This was subject to the parties' expressly agreeing otherwise in a negotiation conducted in good faith. Companies expanded during this time period as a result of expanding industrialisation.

As a result, the employer gained control over the creative products that employees made, leading to the formation of an "author" who, in this case, was the business that hired the person who was generating the work. This circumstance made the development of the work-for-hire ideology inevitable.

It was theoretically reasonable to disregard the ancient master-servant concept, which granted ownership of a servant's work to the master, and instead create a rule of employee authorship since neither Boucicault nor Wheaton were employees in the instances of Boucicault v. Fox or Wheaton v. Peters.

In Keene v. Wheatley, the court chose to create a new equitable foundation of employer ownership. This was accomplished since there were no copyright laws in force at the time. The concept of corporate authorship became less fanciful and more in line with the demands of the moment when Congress approved the 1909 Copyright Act. As a consequence, before being explicitly codified in the 1909 Copyright Act, the "work-made-for-hire" notion was first developed by the courts.[3]

The "Work For Hire" Agreement
The "work for hire" agreement should include a clause that briefly addresses the following topics:
  • The parties to the contract should be identified in clear and unambiguous words. It should also go into detail about the nature of their relationship.
  • A clear statement from both parties that they are freely entering into the agreement is required, taking into account the various objectives that each party may have in mind for the transaction.
  • The payments that are expected to be made should be explained.
  • The nature and extent of each party's use of the contract's subject matter after the employer-employee relationship has ended should also be made clear.
  • Additionally, it should outline what would happen if one or both parties failed to fulfil their obligations.
When the employer owns the intellectual property (hereinafter referred to as IP) but it needs to be customised or altered from its original form, it is advisable to look for a customization or amendment agreement before getting started.

This type of contract specifies the extent of the work to be done and makes it clear that the authorship of the modified work remains unchanged in the event of such adjustments. Instead, it functions as a licencing right whereby the company allows the employee to alter an already existing IP asset, such as a book, software, invention, etc.[4]

Furthermore, to better protect and secure the IP asset resulting from such a sale, the contract may further shed light on the following matters in addition to the points already mentioned:

The employment contract that governs independent contractors and employees should include a clause referring to "work for hire".

A clause allowing the transfer of the work produced during such a course of employment as well as the ancillary ownership rights to such works may be expressly mentioned in the contract."

Provisions Perceived For Work-For-Hire Under Copyright Act
In India
Work for Hire is defined under Section 17 of the Indian Copyrights Act of 1957 under the category of First Owner of the Copyright. This term is quite similar to the one found in UK copyright law. The regulations listed in the aforementioned part are extensive and include all of the situations in which the idea of employment will be applicable. The legal environment is still virtually the same in India as it is in the US and the UK.

For example, if an author creates a work on behalf of another person (referred to as the commissioner), that person will be the first owner of the copyright; however, as was mentioned in the paragraphs before, this will only be the case in the absence of a written agreement between the parties. The legal position of a work created when a person is engaged under a service contract is similar to the UK.
  • Section 17(b) of the Copyright Act states that, in the absence of a written agreement between the parties, the person who requested that a work be created by an author is the first owner of the copyright.
  • Section 17(c) states that, in the absence of an agreement between the parties, the employer is the original owner of the copyright in cases where an author creates a work while employed under a service or apprenticeship contract.
In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association and Ors. [1977 AIR 1443], the Supreme Court ruled that the clauses (b) and (c) of Section 17 of the Copyrights Act, which raise the issue, are the ones that hold the key to resolving the dispute over whether a film maker can invalidate a music composer's or lyricist's rights by hiring them.

The cinematographic film becomes the first party under Section 17(b) when a music composer or lyricist accepts a cinematographic film's offer of payment. Therefore, regardless of whether the composer of the music or lyrics is engaged to write the work under a service or apprenticeship contract, the result would be the same under Clause (c).

The Delhi High Court declared in Khemraj Shrikrishnadass v. M/s Garg & Co. [AIR 1975 Delhi 130] that, unless there is an explicit contract to the contrary, the copyright is often passed to the publisher when a work is finished by one author for another writer in lieu of remuneration. It is up to the parties to a contract to figure out a means to get out of those obligations. Freelancers are consequently regarded as the original owners of copyright in Indian law due to the absence of contractual obligation, while periodicals, magazines, and newspapers are regarded as the original works produced by workers under a service contract.

As stated in Section 101(1) of the Copyright Act (Title 17 of the United States Code), "work made for hire" may be broken down into two categories: either a work produced by an individual while at work or a product deliberately bought or commissioned for use. The notion of labour for hire was developed in the United States of America. Although this idea dates back to the 19th century, it is now given more weight and emphasis than ever.

Work produced for hire is defined by U.S. copyright law as either a work created by an employee while on the job or a work that has been explicitly ordered or commissioned for use. Such distinct separation, nonetheless, was not always eliminated. The fundamental components of the theory of labour for hire were first left up to the American courts to determine on an as-needed basis.

Before the U.S. Supreme Court's historic ruling in Community for Creative Non-Violence v. Reid, this was the prevailing opinion in the courts. In one instance, the Community for Creative Non-Violence (CCNV) and a sculptor called Reid, who had produced a statue for CCNV, were embroiled in a dispute about copyright ownership. By bringing a lawsuit against Reid to enforce the statute's copyright, the CCNV addressed the District Court for the District of Columbia.

The District Court dismissed the case in favour of CCNV, ruling that the statute's production qualified as "work made for hire" under the terms of the Copyright Act of 1976. Reid successfully appealed the District Court's judgement to the Court of Appeals, and the Court of Appeals overturned the judgement by ruling, among other things, that an independent contractor's labour cannot be regarded as work done for hire. When the Supreme Court upheld the appellate court's ruling, the CCNV finally lost.

In such circumstances, an analysis established by the Supreme Court must be used. It was decided that the first factor to consider was whether a specific piece of work was produced by an employee or an independent contractor. The first part of the aforementioned definition will be attracted if it is generated, performed, or prepared by an employee, and that specific task would then typically be regarded as work for hire. On the other hand, the theory will not be applicable if the job was completed, produced, or prepared by an independent contractor.

It was determined by the Court in Community for Creative Non-Violence v. Reed (490 U.S. 730 (1989)) that it was crucial to first determine whether a project was generated by an employee or an independent contractor. If the task was generated by an employee, it would often be referred to as "work made for hire".

Case Laws
There are some famous cases which are given land mark judgement in both the countries of USA and India, those are as follows:

Carter v. Helmsley-Spear

For the SIG Management Company (SIG), John Carter, John Swing, and John Veronis (Jx3) were commissioned to create artwork. Helmsley-Spear, Inc. (Helmsley-Spear, Inc.) assumed control of SIG's building, ended Jx3's agreement to create artwork there, and pulled down their earlier works. Under the Visual Arts Rights Act of 1990 (VARA), the district court prohibited Helmsley-Spear from removing Jx3 artwork that had already been erected in the structure.

  • Whether an artist may maintain ownership of his creations once the title is transferred to another else.
A sculpture is regarded as a work for hire, and VARA does not provide protection for such work. The district court's decision is overturned.


VARA was not intended to safeguard the work of employed artists. Work that was produced while working is referred to as work for hire.

Marco V. Accent Publishing Co.,
Ed Marco, a freelance photographer, worked for Accent Publishing Co., a magazine publisher. They didn't have a written contract or discuss copyright terms. Marco took photos for Accent's magazine, mostly on his own in his studio but sometimes with models provided by Accent. He was paid $450 per magazine issue, and Accent didn't withhold taxes or provide benefits. Marco claimed he owned the photo copyrights as an independent contractor, while Accent argued they belonged to them as works for hire.[5]

  • The main question was whether Marco was an independent contractor or an employee of Accent. If he was an employee, Accent would own the copyrights; if he was an independent contractor, Marco would own them.
The Copyright Act says works are "made for hire" if they're created by an employee within their job. The Supreme Court, in a similar case, Community for Creative Non-Violence v. Reid, defined "employee" based on common law agency principles. The court looked at factors like who controlled the work details, the tools used, payment method, work location, and more.

They also considered the relationship's length and whether special skills were required. The district court initially thought Marco was an employee because he used his equipment and paid taxes himself. But they didn't consider factors like Marco having his own studio, not getting employee benefits, having a specific occupation, or being paid per job.

Additionally, the district court didn't correctly recognise that Marco had control over his work hours, and Accent couldn't assign him more work like an employer typically could. While Accent did influence the photo subjects and composition, they didn't control things like lighting, camera settings, or processing techniques. So, they didn't have the level of control that would make Marco an employee.

The main difference between this case and the one the Supreme Court had previously ruled on was that Accent regularly published photos in ads and articles, while the other case involved commissioning sculptures. However, this difference alone wasn't enough to make Marco an employee.

The Third Circuit Court of Appeals ruled that Marco was an independent contractor, not an employee. Therefore, the photos were not "made for hire," and Marco owned the copyrights to them

Indian Performing Right Society Ltd. v Eastern Indian Motion Pictures Association and Ors.

  1. Whether an existing or a future right of music composer /lyricist is capable of assignment?
  2. Whether the producer of the film can be the copyright owner by means of engaging the composer.
The Supreme Court ruled that the Copyrights Act's provisions (b) and (c), which raise the issue, contain the key to settling the dispute over whether a film producer may invalidate a composer's or lyricist's rights by employing them. The cinematographic film becomes the first party under Section 17(b) when a music composer or lyricist accepts a cinematographic film's offer of payment. Therefore, regardless of whether the composer of the music or lyrics is engaged to write the work under a service or apprenticeship contract, the result would be the same under Clause (c).[6]

Intellectual property rights are one area of law that has witnessed tremendous development. It teaches us that the completed product, which we have made with much sweat and work, may be kept and given special status. Despite the fact that there are several established regulations, some of them are important in and of themselves. The principle of work for hire is one of them. In the states we have so far seen, work for hire is not yet explicitly defined.

The aforementioned contrast was essential in order to illustrate some significant points. One of the key topics is that despite the lack of codification, the notion works essentially the same. with a few minor modifications, everywhere.

The two countries accept it, at least in part. The employer is the rightful owner of any works created by an employee while carrying out his job responsibilities. The basic principle remains the same: the employer or contractor is the first owner of any intellectual property obtained over the course of the activity, unless the contract expressly states otherwise.

The codification of work-for-hire practises should be the sole area of focus, according to the research's authors, in order to avoid the majority of misconceptions and possible legal issues.

  • Preet S. Phansea, The doctrine of 'Work for Hire': A Critical Survey of US, & Indian Cases, Jus Corpus Law Journal.
  • Mr. Shaikh Taj Mohammed, COMPARATIVE STUDY- DOCTRINE OF WORK FOR HIRE, Lex Research Hud Journal.
  • Harsh Kumar, Employer's Copyright vis-a-vis Author's Right: An Unresolved Legal Dilemma, Journal of Intellectual Property Rights Vol 10.
  5. 969 F.2d 1547 (3d Cir. 1992),
  6. AIR 1977 SC 144

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