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Doctrine of “work for hire” under the copyright law: a critical survey of U.K., US and Indian cases



Copyright is a type of intellectual property that grants the owner of a creative work the exclusive right to create copies of it for a set period of time. The creative work can take the shape of literature, art, education, or music. The copyright is also meant to safeguard the original representation of an idea in the form of a creative work, rather than the concept itself.The bundle of rights that copyright claims to be has a significant impact on authorship determination. With the principle of copyright indivisibility becoming redundant, and with the rise of electronic publishing, difficult issues regarding authorship of a copyrightable work arise.The argument that copyright is a bundle of rights have a substantial impact on authorship determination. With the idea of copyright absoluteness becoming obsolete and the advent of electronic publishing, significant questions about who owns a copyrightable work arise.Furthermore, theoretical approaches about the territoriality of electronic publications, the challenge of manipulations affecting authors’ moral obligations, and the vesting of reproduction rights in electronic formats, i.e., whether reproduction rights vest with the original writer or with the company concerned, remain unanswered.

Doctrine of “Work for Hire”

The “work done for hire” theory of the Copyright Act is a key exception to the fundamental premise that copyright ownership rests with the person who creates the work first. If the work is a “work done for hire,” the publisher will be deemed both the creator and the copyright owner of the work under copyright law.The significance of copyright ownership is that the publisher will own all exclusive rights to the work as the copyright owner.The publisher should also keep in mind that the “work for hire” theory covers a lot more than just the “written word.”

The “work made for hire” terminology of the Copyright Act is twofold, stating that a work is “for hire” if it falls into one of the two categories below:

  • If the work is prepared by an employee of an employer (publisher) acting within the scope of their employment, it is a “work made for hire.” Unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment, copyright ownership belongs to the publisher if this situation exists.If the work is created outside of the scope of employment, it is the employee, not the publisher, who owns the copyright to it.
  • It is also a “work made for hire” if a freelancer (independent contractor) and a publisher (employer) agree in writing that the work to be created is a “work made for hire” and if the work was particularly the case arranged or appointed for use as one of nine categories of work enumerated in the Copyright Act:contribution to a group project, translating, supplemental work, consolidation, instructional text, test, test answer material, atlas, or part of a motion picture or cinematic production In this case, the copyright would be owned by the publisher. If the rules are not carefully met, however, the freelancer, not the publisher, will possess the copyright to the work.

US courts on the Doctrine of “Work for Hire”

The US courts have overtime interpreted the term “ employee” in several ways and developed several tests to determine employer-employee relationship.

The tests are as follows:

  1. What level of control does the employer has on their employee and how much can they direct them- In the case of Clarkstown v Reeder[1] (1983), A writer who contributed to the creation of the town’s “Youth Court” guidebook had a “work for hire” relationship with his employer. The test that was used to arrive at this decision was “Right to direct and Control test”. It makes little difference whether the creator is an independent contractor or a full-time employee. Instead, it emphasizes whether the hiring party had the authority to direct and control the job, regardless of whether that authority was actually used.
  • If an employee is an agent- To quote Easter Seal Socy. for Crippled Children & Adults, Inc. v. Playboy Enters[2] (1987),“We hold that a work is “made for hire” within the meaning of the Copyright Act of 1976 if and only if the seller is an employee within the meaning of agency law, or the buyer and seller comply with the requirements of Sec. 101(2). We recognize that this interpretation is a radical break from “work for hire” doctrine under the 1909 Act, but there are good reasons for this break.(Emphasis Added)
  • If the employee is salaried- The court in Dumas v. Gommerman[3] (1989), concluded that “only works produced by formal, salaried employees are covered by 17 U.S.C. § 101(1).”

Indian Courts on the Doctrine of “Work for Hire”

Section 17[4] of the Copyright Act, 1957 deals with “First owner of the Copyright”. Section 2 (d) defines who is an author in different fields of work.

The Kerela High Court in V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd[5]., (1987), held that, Passing of authorship to the employer comes to an end  when employment terminates. The employer has no claim over any work done by the employee after the termination.

As per section 17(b), where a photograph is taken, a painting or a portrait is drawn, or an engraving or a cinematograph film is made for valuable consideration at the request of any person, that person is the first owner of the copyright therein, absent any agreement to the contrary.In the case of Chidambare v. Renga[6] (1965), SC held that, a person is under an obligation to do something, and in order to fulfil that commitment, he transfers some interests for valuing compensation.

UK courts on Dcotrine of “Work for Hire”

The position related to the authorship of the copyright is similar to India and US. The author of a protected piece of authorship is usually the first owner of the copyright. Work done for hire, on the other hand, is an important exception. When an employee prepares a work in the course of his job, the Copyright Act applies. If certain statutory criteria are met, the Copyright Act applies when an individual or other entity orders or commissions a work from an independent contractor.

In US Auto Parts Network Inc. v. Parts Geek LLC[7](2012)the court rules that,According to the “work for hire” doctrine, an employee’s alteration to a computer programmer were owned by the employer.

For commissioned work, unless you agree differently in writing, when you seek or commission another person or organization to create a copyright work for you, the initial legal owner of copyright is the person or organization that created the work, not you, the commissioner.

When it comes to joint authors, if someone wished to duplicate or use a joint-ownership work in some way, all of the owners would have to agree to it; otherwise, a copyright infringement may arise.Individual contributions, on the other hand, are different or separate, and each person is the author of the part they contributed.


Hence, it can be concluded that the laws for “work for hire” under copyright are somewhat similar around all three countries, UK, US, India. Copyright law has also evolved and changed over time to give better protection and a stronger hold for owners.


  1. http://lawnetra.com/copyright-law-authorship-ownership-and-term/
  2. https://www.law.cornell.edu/uscode/text/17/101
  3. http://lexcliq.com/ownership-in-copyright-act/
  4. https://corporate.findlaw.com/intellectual-property/copyright-ownership-the-work-made-for-hire-doctrine-i.html

[1] 141-42 (S.D.N.Y. 1983)

[2] 815 F.2d 323 (5th Cir. 1987)

[3] 865 F.2d 1093

[4] https://indiankanoon.org/doc/1404402/

[5] AIR 1989 Ker 49

[6] 1966 AIR 193

[7] Nos. 10–56194, 10–56129, 2012 WL 3764704 (9th Cir. Aug. 31, 2012)

Contributed by:– Nidhi Jha, Legal intern at LLL

 copyright lawIndian Courts on the DoctrineUK courts on Dcotrine of “Work for Hire”

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