Defining ‘Works Made for Hire’

Court addresses ownership of employee-made works.

Church Law and Tax 1996-03-01


Key point. Literary or musical works produced by an employee within the scope of his or her employment represent “works made for hire.” The employer is the owner of the copyright in such a work, unless it has issued a signed writing transferring copyright ownership back to the employee.

In a case that will be of interest to church leaders, a federal court in New Jersey addressed the issue of whether an employee or employer owns the copyright in literary works produced by the employee in connection with his or her employment. A police officer created an innovative educational program to stop car theft. The program included an officer’s training manual and a student workbook. When the city learned that the officer was marketing the program to other cities, it sued him. The city claimed that the program was a “work made for hire,” and as such the city owned the copyright in the program. A federal court disagreed. The court acknowledged that the Copyright Act vests the copyright in a “work made for hire” in the employer, and defines such a work as “a work prepared by an employee within the scope of his or her employment.” The court conceded that the officer was an employee of the city, but concluded that he had not prepared the educational program “within the scope of his employment.” The court defined “scope of employment” to include all three of the following elements: (1) the employee’s work is the kind he was employed to perform; (2) it occurs substantially within authorized work hours; and (3) it is prompted, at least in part, by a desire to serve the employer.

The court concluded that the officer’s program failed the first test, for the following reasons: (a) The courts rely heavily on an employee’s job description in deciding whether a particular project is the “kind of work” the employee was hired to perform. In this case, the officer’s job description said nothing about creating educational programs. (b) The court also noted that the degree of control an employer exercises over an employee’s project is relevant in determining whether or not the project is the “kind of work” the employee was hired to perform. In this case, the city exercised no control whatever over the officer’s creation of the program. Indeed, the city was not even aware he was working on the project. (c) Courts also consider whether the employee relied on knowledge gained within the scope of his or her employment in deciding whether or not a project was the “kind of work” the employee was hired to perform. The officer in this case gained nothing from his present employment that was useful to him in creating his program. (d) The court quoted from a century—old case: “We do not think … that if the defendant in spare moments wrote a book or taught a night school or sang in a church the fruits of his extra toil on his own behalf should be swept into the tills of the bank.” Hillsboro National Bank v. Hyde, 75 N.W. 781 (1898).

The court also concluded that the officer’s program failed the second test, since there was no evidence that he produced any portion of the program during authorized work hours. The officer testified that he created the program at home during off—duty hours, and that he did not use any city facilities or resources. Finally, the court concluded that the officer’s program failed the third test, since the officer was not motivated by a desire to serve his employer when he created the program. Rather, the officer was motivated by desire to make the program available to many cities, including his own. Since the city failed to establish all three elements of the “scope of employment” test, the court concluded that the officer’s program was not a work made for hire and accordingly the copyright in the work belonged to him rather than to the city.

What is the relevance of this case to ministers and other church staff members? Literary or musical “works created by church employees within the scope of their employment are works made for hire.” The copyright owner of a work made for hire is the employer, not the employee, unless the employer executes a signed writing assigning copyright ownership back to the employee. Church employees who create literary or musical works during normal working hours, at the church, must recognize that such works may satisfy the definition of a work made for hire. This risk can be reduced by doing substantially all the work at home during off—duty hours. To resolve all doubt, consideration should be given to the church executing a signed writing assigning any copyright interest in the work back to the employee. City of Newark v. Beasley, 883 F. Supp. 3 (D.N.J. 1995). [ Copyright Ownership]

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