Copyright Ownership and the Work-for-Hire Doctrine

By Hank FasthoffJuly 4, 2026

By default, ownership of the copyright interest in a work belongs to the person who creates the work. 17 U.S.C. § 201(a). That default rule governs every photograph, every line of code, every design, and every written document produced by anyone, anywhere, unless an exception applies. For businesses, the most important exception is the work-for-hire doctrine, which vests copyright in the employer or commissioning party rather than in the individual who created the work. 17 U.S.C. § 201(b). Whether the doctrine applies depends on the relationship between the parties and, for works by independent contractors, on whether the work falls into one of nine statutory categories that confer work for hire status on works prepared by independent contractors and whether the parties signed a written agreement before the work was created.

Getting the copyright ownership question wrong can be expensive to fix and sometimes impossible. A company that assumes it owns code written by a contractor, a logo designed by a freelancer, or photographs taken by a hired photographer, without a written agreement that satisfies the statutory requirements may later discover that it never owned the copyright interests in the work at all.

Employee Works and Automatic Ownership by the Employer

Under the first prong of 17 U.S.C. § 101's work-for-hire definition, a work prepared by an employee within the scope of employment is a work made for hire. When this prong applies, the employer is the author from the moment of creation, and no written agreement is required.

"Scope of employment" follows the Restatement (Second) of Agency. A work is within the scope of employment if it's the kind of work the employee was hired to perform, it occurs substantially within authorized time and space limits, and it's actuated at least in part by a purpose to serve the employer. A software developer who writes code for the employer's project is creating a work within the scope of employment. A marketing employee who drafts advertising copy as part of her job description is creating a work within the scope of employment. A novel written by an employee outside of business hours using personal equipment, for example, isn't considered a work for hire.

Whether someone is an "employee" for purposes of the work-for-hire doctrine is determined under general common law agency principles, not by what the parties call the relationship. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), a unanimous Supreme Court identified factors relevant to this determination, including the hiring party's right to control the manner and means by which the work is accomplished, the skill required, the source of tools and materials, the location of the work, the duration of the relationship, whether the hiring party can assign additional projects, the hired party's discretion over when and how long to work, the method of payment, the hired party's role in hiring and paying assistants, whether the work is part of the hiring party's regular business, whether the hiring party provides employee benefits, and the tax treatment of the hired party.

No single factor is dispositive, but courts have given particular weight to the last two. In Aymes v. Bonelli, 980 F.2d 857, 862-63 (2d Cir. 1992), the Second Circuit observed that a hiring party's failure to provide employee benefits and its failure to pay payroll taxes amount to a "virtual admission" that the hired party is an independent contractor, because these are obligations a party rarely overlooks for a genuine employee.

Commissioned Works and the Nine-Category Requirement

Under the second prong of § 101, a work specially ordered or commissioned from an independent contractor can be a work made for hire, but only if two conditions are satisfied. First, the work must fall into one of nine enumerated categories in the statute. Second, the parties must agree in a written instrument signed by both of them that the work is a work made for hire, and that agreement must be in place before or at the time the work is created.

17 U.S.C. § 101 lists the nine categories that can be considered a work for hire made by an independent contractor. A specially ordered or commissioned work qualifies only if it's created for use as (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, or (9) an atlas.

Copyright Office Circular 30 provides that if a work fails to satisfy either requirement, the work isn't a work made for hire, regardless of what the contract states. Labeling a work as "work made for hire" in a contract doesn't make it one if the work falls outside the nine categories or if the agreement wasn't in place before the work was created.

What Falls Outside the Nine Categories

Most of the works businesses routinely commission from independent contractors fall outside the nine categories. Software, photographs (unless they qualify as contributions to a collective work or as supplementary works), logos, graphic designs, and sculptures all fall outside the scope of the nine categories. Website designs, marketing materials, and standalone written content commissioned from a freelancer, for example, qualify only if they fit one of the defined categories.

A company that hires a freelance developer to build custom software, labels the contract as "work for hire," and assumes it owns the code has made a common and consequential error. Software doesn't fall into any of the nine categories. Calling it a work for hire in the contract has no legal effect on ownership. The developer owns the copyright unless the contract also contains a valid assignment of the copyright interests in the deliverables.

The Assignment Alternative

When work-for-hire status is unavailable, either because the hired party is an independent contractor and the work doesn't fit the nine categories, or because no written work-for-hire agreement was signed, the commissioning party can, and typically should, acquire copyright through a written assignment.

Under 17 U.S.C. § 204(a), a transfer of copyright ownership isn't valid unless it's in writing and signed by the owner of the rights conveyed or the owner's authorized agent. An assignment is a transfer of ownership in the copyright interests. A verbal agreement to assign copyright isn't enforceable under any circumstance.

Practitioners routinely pair a work-for-hire provision with an assignment provision in the same agreement. If the work qualifies as work for hire, the employer or commissioning party owns the copyright from the moment of creation. If the work doesn't qualify as work for hire (because it falls outside the nine categories or because the hired party turns out to be an independent contractor rather than an employee), the assignment provision transfers the copyright to the commissioning party.

One difference between the two structures is significant. A work made for hire isn't subject to the author's statutory termination right under 17 U.S.C. § 203, which allows an author who granted a copyright on or after January 1, 1978, to terminate that grant during a five-year window opening 35 years after execution (or, where the grant covers the right of publication, at the earlier of 35 years from publication or 40 years from execution). Termination requires the author or the author's statutory heirs to serve advance written notice on the grantee, not less than two nor more than 10 years before the effective date, and to record that notice with the Copyright Office before the effective date. An assigned copyright is subject to this right, meaning the author can reclaim the rights decades later regardless of what the assignment agreement states, though only if the notice requirements are satisfied on time. Section 203(a)(5) makes the right non-waivable, so a contract clause purporting to surrender it doesn't hold. For long-lived works, particularly software, brand assets, and creative content with enduring commercial value, this distinction can affect the commissioning party's long-term control. That protection depends entirely on the arrangement qualifying as a work made for hire under § 101. A written agreement that calls the work a work for hire, but that involves a contractor performing work outside the nine statutory categories, doesn't create one. Courts treat the failed work-for-hire agreement as an assignment, which means the termination right survives and the author or the author's heirs can reclaim the copyright in the year 35 window.

Joint Works and Co-Ownership

Under 17 U.S.C. § 101, a "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. When a work qualifies as a joint work, each co-author is a co-owner of the entire copyright, regardless of the size or nature of each author's contribution. 17 U.S.C. § 201(a).

Co-ownership of copyright produces consequences that surprise many business owners. Each co-owner may license the entire work, non-exclusively, to anyone, without the consent of the other co-owners. Each co-owner's only obligation is to account to the other co-owners for any profits received from such licensing. A co-owner can't grant an exclusive license or assign the copyright without the consent of all co-owners, but a non-exclusive license is available unilaterally.