copyright work for hire

Commonly Used Copyright Assignment Language Is Invalidated by Appeals Court

Assignments of copyright and other intellectual property rights are common both in employment and other types of agreements. 

For copyrights, many form agreements include standard assignment clauses that use some variation of language that the work will be deemed a “work for hire” and hence owned by the hiring party. 

In T.D. Bank v. Hill (3d Cir. 2019), the Third Circuit considered such widely used language in an agreement meant to transfer copyright in a manuscript.  It held that language invalid.     

Work for hire is a creation of the Copyright Act, whereby a work created by an employee in the scope of his employment is deemed to have been authored by the employer. 

Parties cannot agree to “deem” a work one for hire – it has to be one under the Copyright Act through application of the factors set out by the Supreme Court.

T.D. Bank now squarely calls into question the use of such language in assignment agreements and counsel involved in drafting such assignments should strongly consider using different language if the intended result is to be achieved.. 

It is recommended that additional language be included, to the effect that if the work is not deemed “for hire,” then alternatively the person agrees to assign all rights to the hiring party.

Unusual Cases Sharpen Copyright Law Principles

Most litigated cases present fairly routine fact patterns with well-established legal principles.  The main point of contention is mustering proof of the facts.  Occasionally, courts confront unusual cases which can serve to sharpen understanding of the underlying legal principles involved.  These cases also highlight and help define for the bar legal concepts that take on a new understanding when reviewed in light of unusual situations.

We review here three recent copyright decisions from New York federal courts that involve unusual facts or legal postures.  Review of these decisions can be both a valuable review of basic copyright concepts and can yield a more nuanced understanding of them.  The lessons learned from these cases include (1) use of the fair use doctrine for obtaining copyright; (2) work for hire principles; and (3) interaction of state contract law and copyright.