The Works Made For Hire Law: What It Is and What It Isn't

[Symson]

The Works Made For Hire law was made to stop employers from wrongly classifying employees and independent contractors for tax purposes. It was not made to be the ax it has become to separate a creator from their legal rights.

Although the general rule is that the person who creates the work is its author, there is an exception to that principle; the exception is a work made for hire, which is a work prepared by an employee within the scope of their employment, or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as work made for hire, the employer or commissioning party is considered the author.

Most of the time, you can't possibly have a work-for-hire situation.

You are not their employee.

They are not paying for any of your supplies.

They are not paying your taxes.

You are not working at their location.

Below are highlights from Circular 9 from the US copyright site, which you can view in its entirety here.

"In the case of works made for hire, the employer and not the employee is considered the author. Section 101 of the copyright law 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
• a 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
• 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."
I've added some emphasis, but that is the law word for word. So what have we learned?

Part One only applies if you are an employee.

Part Two only applies if it falls in one of the nine categories above AND a written agreement is signed. Both things have to happen. It's not the automatic slam dunk that some would have you believe. Please don't take my word for it. Let's look again at the exact wording in the law.

"A work created by an independent contractor can be a
work made for hire only if (a) it falls within one of the nine
categories of works listed in part 2 above, and (b) there is a
written agreement between parties specifying that the work
is a work made for hire."

Comic books and graphic novels may fall into the first category, a contribution to a collective work. Guess what? One person can copyright the text and another the art to the collective work. Both can share the copyright as co-creators. Just because you're hired doesn't mean you are not a co-creator.

You should always have a contract that spells out who owns what. It doesn't have to be a work-for-hire contract.

Most likely, they will not own the art unless they have paid for the rights to it, in addition to paying for services rendered. That's right; it's two fees. One is to get the art drawn, and if the person wants to own the art or the rights to the art, then that is a separate fee; according to copyright law, the artist has to transfer their rights to someone else.