Skip Navigation Links.
Collapse IRMI OnlineIRMI Online
Expand How To Use IRMI OnlineHow To Use IRMI Online
My Paid Publications
Expand What's NewWhat's New
Expand DashboardsDashboards
Expand Commercial Liability InformationCommercial Liability Information
Expand Commercial Property InformationCommercial Property Information
Expand Commercial Auto InformationCommercial Auto Information
Collapse D&O, PL, E&O, EPLI InformationD&O, PL, E&O, EPLI Information
Expand What Every Insurance Professional Should Know about Network Security and Privacy LiabilityWhat Every Insurance Professional Should Know about Network Security and Privacy Liability
Expand Free Betterley Report SummariesFree Betterley Report Summaries
Collapse Free D&O, E&O, EPLI CommentaryFree D&O, E&O, EPLI Commentary
Expand Employment PracticesEmployment Practices
Expand Healthcare Professional Liability InsuranceHealthcare Professional Liability Insurance
Collapse Intellectual PropertyIntellectual Property
Supreme Court Clarifies Induced Infringement (September 2014)
Looking To Transfer Venue (July 2014)
Texas Adopts Uniform Trade Secrets Act (April 2014)
Patent Trial Win ≠ Permanent Injunction (January 2014)
Court Expands Defenses to Indirect Infringement (November 2013)
Willful Patent Infringement Less Likely (July 2012)
Protect Your Trademarks under Expanded Domain Name System (March 2012)
Patent Reform 2011 (October 2011)
Copyright Infringement Risks Associated with Using Social Media (June 2011)
Three Things To Consider When Launching a New Product (April 2011)
Business Method Patents in the Wake of Bilski v. Kappos (August 2010)
Patent Marking in Light of Forest Group Inc. v. Bon Tool Co. (April 2010)
Intellectual Property Litigation Rising: How to Protect Your Company’s Financial Health (September 2009)
Transfer of Venue in the Eastern District of Texas (February 2009)
Opinion of Counsel after Broadcom v. Qualcomm (November 2008)
Supreme Court Weighs in on Patent Issues (September 2008)
Willful Infringement after Seagate (May 2008)
Prospects for Patent Reform in 2008 and Beyond (February 2008)
Trade Secret Protection: Good Risk Management (November 2007)
Protecting Analysis: Patents in the Insurance Industry (August 2007)
Active Inducement of Infringement: Proof of Knowledge of a Patent Is Required (May 2007)
Rethinking Trademark Litigation (February 2007)
Recent Copyright Case: No CGL Coverage (December 2006)
Graham v. USI MidAtlantic: Should I Be Concerned? (August 2006)
"To Use or Not To Use, That Is the Question" (April 2006)
Liability for Infringing Acts before a Patent Is Granted (January 2006)
The Dangers of Delay in Filing Patent Applications (November 2005)
Are Technical Documents Privileged? (July 2005)
Avoiding Willful Infringement in Intellectual Property Litigation (Part 1) (February 2004)
Avoiding Willful Infringement in Intellectual Property Litigation (Part 2) (May 2004)
Avoiding Willful Infringement in Intellectual Property Litigation (Part 3) (March 2005)
Shhhhhhh…Don't Tell Anyone. It's a (Trade) Secret (November 2004)
Does the Typical CGL's "Advertising Injury" Coverage Extend to IP Claims? (August 2004)
Suing a Foreign Company That Has No U.S. Presence (October 2003)
Intentional Trademark Infringement and Insurance Coverage (June 2003)
The Question of Work for Hire: "I Paid for It. Why Isn’t It Mine?" (March 2003)
Method and Apparatus for Beating the Competition (January 2003)
Everything You Don't Know Can and Will Be Held Against You (June 2002)
Anything You Say (or Do) Can and Will be Held Against You in a Court of Law (March 2002)
Claims?? We Don't Need No Stinkin' Claims!!! (Or Do We?) (November 2001)
What Does the Word "Comprising" Mean, and Why Should I Care? (August 2001)
Intellectual Property Coverage: Are You Naked? (May 2001)
Bigfoot and the Cybersquatters (March 2001)
Copyright Infringement Pitfalls in the Online Arena (October 2000)
Expand Professional, D&O, and Fiduciary LiabilityProfessional, D&O, and Fiduciary Liability
Expand Workers Compensation InformationWorkers Compensation Information
Classifications and Cross-References
Expand Risk Mgt. and Multiline InformationRisk Mgt. and Multiline Information
Expand Risk Finance InformationRisk Finance Information
Expand Construction InformationConstruction Information
Expand Personal Lines InformationPersonal Lines Information
Expand Claims, Caselaw, LegalClaims, Caselaw, Legal
Expand Insurance IndustryInsurance Industry
Expand Glossary of Insurance & Risk Management TermsGlossary of Insurance & Risk Management Terms
Expand SearchSearch
Terms of Use
Privacy Statement
System Requirements

The Question of Work for Hire: "I Paid for It. Why Isn’t It Mine?"

March 2003

The "work for hire" doctrine is one of the most confusing subjects facing many employers. It is very important that employers clear up copyright issues at the outset—before the work is performed. Assignments, copyrights, and independent contractors all have to be handled delicately, and in writing.

by Sanford E. Warren Jr.
Winstead Sechrest & Minick

One of the most commonly misunderstood subjects that confuses my clients on a regular basis involves copyright law, and in particular the "work for hire" doctrine. Imagine yourself as an executive of a company who hires an independent contractor to perform some work for your company. The independent contractor can be anyone:

  • An architect who is preparing architectural plans for a new restaurant or building for your company
  • A software engineer hired to create software for your company or to do programming for maintenance of your company’s existing software
  • An artist who is commissioned to create a painting for display in the atrium of the company offices

In all of those instances you, the company owner or executive, will pay for the work performed by the independent contractor. Now it would be logical to assume that since you paid for it, you own the work and, therefore, could do anything you like with it, i.e., modify it, copy it, build multiple buildings from it or anything else that you would like. Unfortunately, that is not the law.

Copyright of Derivative Works

The copyright statute, 17 U.S.C. § 101 et seq., is very clear that it is the author of the work who owns all the copyrights in it. As such, the author has the sole ability to make copies, modifications, and changes to the work. These latter works are commonly referred to as derivative works under the copyright statute. For example, if you hire an architect to design a two-story, three-bedroom, two-bath house and then you decide that you would like to change the elevations and the floor plan, the architect (or copyright author) is the only one who can do so, because he owns the copyright in the original work and, thus, owns the right to make all of the derivative works.

A similar analogy is that of the author of a book. The book itself is one work. The screenplay for a movie based on that book is a derivative work of the book. The movie made from the screenplay is yet another derivative work. And, importantly, it is the original book author who has the sole and exclusive right to prepare all of these derivative works.

Assigning Copyright

So what the company purchased is the one and only one copy of that original work unless the company has an agreement in writing with the independent contractor that assigns all of the copyrights to that particular work to the company. Note that calling something a "work for hire" may not necessarily provide you all the protection you need. Only certain kinds of work actually qualify as a "work for hire" under the copyright statute. For example, it is a common misconception that software qualifies as a work for hire. It is not, however, one of the enumerated categories of works that qualifies as a work for hire in the copyright statute.

Handling Independent Contractors

How does a company protect itself in the case of an independent contractor? It is very simple. Any independent contractor agreement should state (1) that it is a "work for hire" and (2) also have an assignment of the copyrights in the work to the company.

Note that this type of agreement must be in writing. While there are some limited exceptions in which an oral agreement for a work for hire has been held to be enforceable by a court, these are rare and very fact-specific. Thus, as with many things in the legal profession, it’s always safer to have it in writing.

The good news for employers, however, is that any work performed by an employee of a company automatically qualifies as a work for hire. Thus, if the author of your software program or the architect who designed your buildings is an employee of your company, then the copyrights in those works belong to the company.

Getting Assignments after Work Completion

The next question I frequently get asked by my clients is, "Well, I’ve already had this work done and I didn’t get a work for hire agreement signed or an assignment of the copyrights. What can I do?" The answer is very straightforward. Go back to the independent contractor and have him/her execute a "work for hire" and assignment agreement with you. It has been my experience that under the circumstances where there is an ongoing relationship between the independent contractor and the company, most people will sign such agreements.

On the other hand, if there is no ongoing relationship, or if there has been a termination of that relationship, then your task becomes much more daunting and difficult. Unless you can prove under the circumstances that the work was always intended to be a work for hire and the independent contractor is willing to agree with you, you will have no rights to the underlying copyrights in those works and thus will have to try and design around the underlying copyrights or find some other means of accomplishing your goal.


So if the old adage in real estate is "location, location, location," then the adage under a "work for hire" is "get it in writing, in writing, in writing."

Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

© 2000-2015 International Risk Management Institute, Inc. (IRMI). All rights reserved.