What’s the difference between a work for hire and an assignment, and why is it important? It comes up in the context of copyright protection. If something was created as a true work for hire, it matters. Things like the length of copyright protection and — gasp — termination can come into play if you’re using the wrong term.
What Does “Work for Hire” Mean?
Despite being thrown around many creative industries, the term “Work for Hire” or “Work-made-for-Hire” is a specific legal term. It refers to:
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as:
- a contribution to a collective work;
- a part of a motion picture or other audiovisual work;
- a translation;
- a supplementary work;
- a compilation;
- an instructional text;
- a test;
- an answer material for a test; or
- an atlas,
Let’s Unpack That Underlined Language:
|Technical Legal Language:||Plain English Definition:|
|within the scope of his or her employment||As a part of his or her job. For example, it's a part of an in-house graphic designer's job to create graphic designs. It is likely not part of an in-house graphic designer's job to write songs.|
|expressly||Not ambiguously, but specifically. The terms of a contract have to specific in saying that the company and the contractor both intend the work to be a "work for hire."|
|in a written instrument||It must be in writing. Not in an email or text message, in a written contract.|
|signed||Signed. You/he/she have to sign it.|
Bottom line, to be considered a valid work-for-hire, a work for hire must fall under this legal definition. If a work is truly a work made for hire, the owner (employer or contracting party) is deemed the “author” of the creative work. Put differently, it’s almost as though the person that actually created the thing never existed. Copyright protection in a work-for-hire lasts 95 years from the date the work was published, or 120 years from the date of creation, whichever expires first.
What is an Assignment?
Think of an assignment as a transfer. Person creates a website. Then, Person assigns all rights whatsoever in that website, to Company. Person is still the original author of the website, but Company owns it. Thus, the Person has transferred (assigned) the website to the Company.
What is the Difference Between A Work for Hire and an Assignment, in Plain English?
A work for hire exists as if the subsequent owner created it. The original “author” of an assigned work is always the author. This is true even if all rights were assigned away.
Why Does the Difference Between A Work for Hire and an Assignment Matter?
Ownership. Again, the company/employer, or person that the original creator contracted with, owns a work made for hire . Protection lasts for longer than you or I will be alive in that case. But an assignment gets murkier. Under the U.S. Copyright Act, the original author can terminate an assignment after 35 years (generally speaking). The author has to adhere to some technicalities laid out under the law, but it’s possible. And, you can’t contract away this right to terminate.
Bonus Question: What is a License? It’s a little bit outside of the scope of this post, but since we are talking about copyright ownership, it’s worth bringing up a license. Think of a license as permission. In other words, if you license the ability to distribute your book, you are not giving away your copyright in the book. Rather, you are granting permission to someone else to do so.
The Point: The terms are used interchangeably, but an assignment and a work for hire are two different things. Learn about the difference between a work for hire and an assignment. And, make sure your contracts say what you want them to say.