Although it’s more of an issue for the visual artist or writer, work-for-hire is another
potential issue performing artists, particularly when working in film, video games or au-
diovisual applications. The United States Copyright Act of 1976 defines work-for-hire as:
“A ‘work made for hire’ is—(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 con-
tribution 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 in-
strument signed by them that the work shall be considered a work made for hire.”
(17 U.S.C. § 101)
In essence, if you have songwriting or performing clients and sign a work-for-hire
agreement, you would be acting as an employee of your client, and rights to the work you
create would be vested with them and not you.
Several factors are involved in determining whether an independent is, in fact, an in-
dependent contractor or an employee. To be considered a work-for-hire, all of the follow-
ing conditions must be met:
- The work must come within one of the nine limited categories of works, namely
(1) a contribution to a collective work, (2) a part of a motion picture or other au-
diovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6)
an instructional text, (7) a test, (8) answer material for a test, (9) an atlas - The work must be specially ordered or commissioned
- There must be a written agreement between the parties specifying that the work is
a work made for hire