Work Made for Hire
17 U.S.C 101 defines a “work made for hire as: 1) a work prepared by an employee within the scope of his or her employment, or 2) 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.
In other words, whether or not a particular work is made for hire is determined by the relationship between the parties. This determination is often difficult to make where an agreement stating the relationship was not made prior to creation of the work.
In Community for Creative Non-Violence v. Reid, the court held that in order to determine whether a work was made for hire, absent an agreement stating such, it must first be determined whether the work was prepared by an employee or an independent contractor. If an employee created the work, the work will be considered “made for hire,” under subsection 1.
If the work is created by an independent contract, then the work is specially ordered/commissioned under subsection 2. In that case, the work will be “made for hire” only if the work is of the type listed in subsection 2, and there is a written agreement between the parties stating that the work is “made for hire.” Without both of these requirements, the work will not be a “work made for hire.”