The Unique Work Made for Hire Relationship in California

Many clients think that they own the copyrights to the photos when they hire a photographer. But, in the United States, if the photographer is not the client’s employee (a w2 employee instead of a w9 independent contractor), the photographer owns the copyrights unless the photographer first agreed in writing and the work falls into one of 9 statutory categories.

Circular 9 from the U. S. Copyright Office explains: a work made for hire (WMFH) is ”a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” The Circular emphasizes that when the work is created by an independent contractor, both parts must be satisfied–that is, the agreement must be in writing AND the work must fit one of those 9 categories. See also 17 USC 101.

On the other hand, if photos are taken by an employee within the scope of employment, then the photos are a WMFH and the employer is both the “author” and owner of the copyrights.

More companies now insist that they own the copyrights to avoid future infringement claims or licensing expenses, which can be a disadvantage to shooting WMFH photos.

However, in California, Labor Code Section 3351.5(c) provides:

Any person while engaged by contract for the creation of a specially ordered or commissioned work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all the rights comprised in the copyright in the work.

Likewise, California Unemployment Insurance Code Sections 686 and 621(d) provide that:

Employer also means any person contracting for the creation of a specially ordered or commissioned work of authorship when the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all of the rights comprised in the copyright in the work. The ordering or commissioning party shall be the employer of the author of the work for the purposes of this part.

Therefore, you technically are an employee of any company that hires you to take photos pursuant to a WMFH agreement. Fortunately, the company then must provide workers’ compensation insurance to cover you if you get hurt on the job.

Because California companies have additional responsibilities when you’re an employee (such as payroll taxes and mandatory reporting to the state), they likely will try to avoid the traditional WMFH agreement by asking you to later transfer the copyrights or allowing you to keep some of the rights.

Whatever the agreement, be sure to review it closely so that you understand your rights.

 

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