Work Made for Hire: Who Owns a Copyright Created for Someone Else

Copyright normally belongs to the person who created the work. The work made for hire doctrine is the major exception: when it applies, the law treats the employer or commissioning party as the author and owner from the start — the actual creator never held the copyright at all. Getting this right determines who can license, sell, or enforce a work, so it is one of the most consequential rules in copyright.

Two ways a work qualifies

Under 17 U.S.C. § 101, a work is "made for hire" in only two situations:

• 1. Works by employees. A work prepared by an employee within the scope of their employment is automatically a work made for hire, owned by the employer. No written agreement is required.
• 2. Certain commissioned works. A work by an independent contractor qualifies only if (a) it falls into one of nine enumerated categories (such as a contribution to a collective work, a translation, or an audiovisual work) and (b) the parties sign a written agreement stating it is a work made for hire.

Employee or contractor? The Reid test

Because the first category turns on employee status, courts use the agency test from Community for Creative Non-Violence v. Reid (1989). It weighs factors like the hiring party's control over how the work is done, the skill required, who provides the tools, the source of the worker's benefits, and tax treatment. Calling someone a "contractor" does not settle it — the facts do.

Why it matters — and the assignment alternative

If a commissioned work does not fit the nine categories, no "work made for hire" label can make it one. In that situation the only way for the hiring party to own the copyright is a written assignment transferring it. This is why well-drafted contracts for freelancers, agencies, and developers include both a work-made-for-hire clause and a backup assignment — so ownership lands with the client no matter which rule applies. Understanding who authored a work is the foundation for every later license, transfer, and enforcement decision.