Who Owns the Work: Employees, Contractors, Joint Authors, and Work Made for Hire
By Casey Scott McKay ·
Copyright vests initially in the author, and paying someone to create a work almost never makes the payer the author. This article explains the two exclusive routes to work-made-for-hire status under Sections 101 and 201(b) of the Copyright Act — the employee route governed by the common-law agency test the Supreme Court adopted in its 1989 Reid decision, and the commissioned-work route that requires both a signed writing and one of nine enumerated categories — and why most contractor work, including logos, websites, standalone software, novels, photographs, and architectural drawings, fails the second route entirely. It works through joint authorship in the Childress and Aalmuhammed lines of cases, the circuit disagreement over whether each contribution must be independently copyrightable, and the consequences of co-ownership that clients rarely anticipate. It covers the Section 204(a) signed-writing requirement for transfers, the implied nonexclusive license that fills the gap when there is no writing, and the recordation and priority rules of Section 205. It closes with the inalienable termination rights of Sections 203 and 304(c), including the 35-year window, the two-to-ten-year notice, the recordation condition, the derivative works exception, and the rule voiding agreements to the contrary, and it flags where the law is genuinely unsettled, from the timing of the work-for-hire writing to loan-out companies and the ownership gap for AI-assisted works.
IP and Technology > Copyright | Article | Published 24 February 2024 - Updated 27 January 2026 | Casey Scott McKay - marksy.us
Summary. Copyright vests initially in the author, and paying someone to create a work almost never makes you the author. This article explains the two exclusive routes to work-made-for-hire status under 17 U.S.C. §§ 101 and 201(b) — the employee route governed by the common-law agency test of Community for Creative Non-Violence v. Reid, and the commissioned-work route that requires both a signed writing and one of nine enumerated categories — and why most contractor work, including logos, websites, software, novels, photographs, and architectural drawings, fails the second route entirely. It works through joint authorship under Childress v. Taylor and Aalmuhammed v. Lee, the circuit disagreement over whether each contribution must be independently copyrightable, and the consequences of co-ownership that clients rarely anticipate. It covers the § 204(a) signed-writing requirement for transfers, the implied nonexclusive license that fills the gap when there is no writing, and the recordation and priority rules of § 205. It closes with the inalienable termination rights of §§ 203 and 304(c)-(d): the 35-year window, the two-to-ten-year notice, the recordation condition, the derivative works exception, and the "agreements to the contrary" rule that defeats retroactive work-for-hire labels. Throughout, it flags where the law is genuinely unsettled.
Keywords: work made for hire · copyright ownership · 17 usc 201 · community for creative non-violence v reid · joint authorship · aalmuhammed v lee · childress v taylor · section 203 termination · section 304(c) termination · independent contractor copyright · copyright assignment · section 204(a) writing requirement · copyright recordation · section 205 priority · chain of title · nine enumerated categories · scope of employment · derivative works exception · agreements to the contrary · implied nonexclusive license
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