Work Made for Hire vs Copyright Assignment Explained

A “work made for hire” clause in a contractor agreement is, for most software, logos, and marketing content, legally empty. The phrase has a specific statutory meaning, and the work has to fit it; calling something a work made for hire in a contract does not make it one. The agreement that actually moves ownership in those cases is an assignment. The two routes end in the same place (the company owns the copyright) but differ in who is treated as the author, how long protection lasts, and whether the creator can take the rights back decades later. Our copyright registration practice sees the consequences in the “author” field of every application, where the wrong answer produces a certificate that misstates ownership.

What work made for hire means

Under the Copyright Act, a work made for hire is the employer’s work from creation. The employer is the author, and the individual who created it never owned it. There are exactly two ways a work qualifies.

The first is a work prepared by an employee within the scope of employment. Whether someone is an employee is decided under common-law agency factors rather than by the label on the contract: who controls the manner and means of the work, the skill required, who supplies the tools and workspace, the duration of the relationship, whether the hiring party can assign additional projects, how payment is made, and whether the hiring party provides benefits and withholds taxes. A full-time developer on payroll is an employee. A freelancer paid per project, using their own equipment, with no benefits, generally is not, no matter what the agreement calls them.

The second is a specially ordered or commissioned work that falls into one of nine categories: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. Both parties must sign a written instrument stating that the work is made for hire. A logo is not on the list. A standalone software program is not on the list. A website’s text and photographs are usually not on the list. For those works, a contractor’s work-for-hire clause does nothing.

What an assignment does

An assignment is a transfer of copyright ownership from the author to someone else. The author remains the author; the assignee becomes the owner. The Copyright Act requires an assignment to be in writing and signed by the owner of the rights being transferred. Email exchanges and invoices do not qualify. A signature on a short assignment paragraph does.

Assignments can be present-tense (“Contractor hereby assigns”) or future (“Contractor agrees to assign”). The present-tense form transfers rights automatically as each work is created. The future form is only a promise that must be performed later, and if the contractor signs a conflicting present-tense assignment to someone else in the meantime, the other party can win. Draft in the present tense.

Recording the assignment with the Copyright Office is optional but, once the work is registered, gives constructive notice to the world and establishes priority against a later transfer of the same rights. For works that matter, record it.

Where the two routes diverge

Term of protection

A work by an individual author is protected for the author’s life plus seventy years. A work made for hire is protected for ninety-five years from first publication or one hundred twenty years from creation, whichever expires first. For a corporate owner, the work-for-hire term is predictable and does not depend on anyone’s lifespan.

The termination right

This is the difference that matters most over time. An author who assigns a copyright has a statutory right to terminate that assignment during a five-year window beginning thirty-five years after the grant, by serving advance notice within the period the statute sets. The right cannot be waived by contract. It exists so that creators who sold rights cheaply can recover them once the work’s value is known. A work made for hire has no author other than the employer, so there is nothing to terminate. For a company that expects a work to be valuable for decades, an employee-created or properly categorized work made for hire is the more durable form of ownership.

Moral rights and the author field

Visual artists have limited moral rights of attribution and integrity under federal law, but those rights do not apply to works made for hire. On a registration application, a work made for hire lists the employer as author and answers the work-for-hire question yes; an assigned work lists the individual as author, the company as claimant, and “by written agreement” as the basis of the transfer. Getting this field right is part of our post on how to register a copyright online.

The belt-and-suspenders clause

Because a contractor’s work may or may not fit a statutory category, well-drafted agreements use both routes in one paragraph: the work is a work made for hire to the extent it qualifies, and to the extent it does not, the contractor hereby assigns all right, title, and interest to the company. Add a waiver of moral rights, a confidentiality clause, and an obligation to sign further documents needed to perfect the transfer. One caution: at least one state treats a work-for-hire clause with an individual contractor as evidence of an employment relationship for certain state-law purposes, so for contractors in that state the assignment-only route is sometimes preferred.

For software specifically, where the contractor route is common and the statutory categories almost never apply, the assignment is the operative language, as explained in our post on copyright registration for software. For the broader picture across all IP types, including inventions and trademarks, see who owns IP created by employees and contractors. Our contract drafting and review team can supply the clause or review the one you have.

If you are relying on a work-for-hire clause to own something a contractor built, a consultation with Capitol Law Partners can confirm whether it holds and fix it if it does not. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our copyright ownership and registration page or schedule a consultation.