Should a contractor's work be a work made for hire or an assignment?

Businesses commission logos, product photos, videos, songs, copy and code from freelancers every day, and most assume that paying for the work means owning it. Under federal copyright law it does not, unless the paperwork is right. Our page on IP licensing and assignments calls this kind of gap "a portfolio of assumptions." This page explains the two ways to close it and which one fits.

How to decide, step by step

1. Is the creator an employee? A work prepared by an employee within the scope of employment is made for hire automatically (17 U.S.C. 101). Whether someone is an employee is judged under general agency law, using factors the Copyright Office lists in Circular 30, such as who supplies the space and tools, how long the relationship lasts, how the person is paid and taxed, and whether the work was done during the hiring party's business hours as part of the creator's usual tasks.
2. If not, is the work in one of the nine categories? A commissioned work can be made for hire only if it is ordered for use as a contribution to a collective work, 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, or an atlas.
3. Is there a signed writing that says so? Both parties must expressly agree, in a written instrument signed by both, that the work is a work made for hire. Circular 30 lists four criteria and says that if any is missing, "it is not a work made for hire."
4. If it fails any test, use an assignment. An assignment transfers the copyright from the creator, and it must be in writing and signed by the creator (17 U.S.C. 204(a)).
5. Use both in one contract. State that qualifying work is made for hire and, to the extent any work is not, that the creator assigns it. Then record and register what matters.

Why does the label matter if you own it either way?

Because the two routes produce different legal results long after the invoice is paid.

• Authorship. For a work made for hire, the employer or commissioning party "is considered the author" (17 U.S.C. 201(b)). With an assignment, the creator remains the author and the business is the owner by transfer.
• Termination. An assignment signed by an individual author on or after January 1, 1978 can be terminated during a five-year window starting 35 years after the grant, notwithstanding any agreement to the contrary (17 U.S.C. 203). Termination does not apply to works made for hire. Our page on getting rights back after 35 years explains the process.
• Term. A work made for hire lasts 95 years from first publication or 120 years from creation, whichever ends first; a work by an individual author usually lasts for the author's life plus 70 years (17 U.S.C. 302).
• Visual artists' rights. The definition of a "work of visual art," which carries attribution and integrity rights, excludes any work made for hire (section 101).
• Registration. The application names the author. The Copyright Office says the applicant, not the Office, decides whether a work is made for hire, based on facts when it was created, and an examiner may question a claim that looks implausible (Circular 30).

What should the contract say about ownership?

A contractor agreement that holds up usually does six things in plain words. It describes the deliverables precisely, including drafts, source files and outtakes if the business wants those too. It states that deliverables falling within a listed category are specially ordered or commissioned for that use and are works made for hire. It adds that, to the extent any deliverable is not a work made for hire, the contractor assigns all right, title and interest in it, using words of present transfer ("hereby assigns") rather than a promise to assign later. It requires the contractor to sign any further documents needed to register or record the transfer, which is what makes a later filing possible if the contractor becomes hard to reach. It lists anything the contractor keeps, such as pre-existing tools, stock elements or a portfolio right, with a license to the business for whatever it needs from those. And it is signed by both parties before work begins.

Two more points come up often. If the contractor uses material owned by someone else (stock images, fonts, samples, footage), the agreement should say who obtains and pays for the licenses, because an assignment cannot transfer rights the contractor never had. And if the business plans to register the work, the agreement should match the facts the application will state about authorship. Our page on production legal and insurance shows how these terms sit inside a film or video production's paperwork.

What changes the answer

• Timing of the signature. Circular 30 says work-made-for-hire status "is determined by facts in existence at the time the work is created." Sign before work starts. An assignment can still be signed later, but the gap leaves the creator owning the work in the meantime.
• Employee or contractor. Calling someone an independent contractor does not decide it; the agency-law factors do. A full-time staff designer is likely an employee; a freelancer with her own studio, tools and clients likely is not.
• Film and video. Contributions to a motion picture or other audiovisual work are one of the nine categories, which is why production deals rely on work-for-hire language; our post on getting a clean film chain of title covers how those documents fit together. Our page on who owns a music video applies the same rule to music videos. For full productions, see work made for hire in film and TV.
• Books. A whole book written for someone else usually fits none of the nine categories, so ghostwriting deals rely on an assignment; our page on who owns a ghostwritten book explains the exceptions.
• Agreeing otherwise. Even for a work made for hire, the parties can agree in a signed writing that the creator keeps some rights (201(b)), for example a portfolio use.
• AI-assisted deliverables. If a contractor generates parts of the work with AI tools, copyright may not cover those parts at all, which no contract clause can fix; the Copyright Office's Part 2 report on copyrightability explains why human authorship is required. Our post Creating With AI: Where Copyright Protection Stops or Thins explains the human authorship requirement, and a contract should require the contractor to disclose such use.

A worked example

Common mistakes

• Using "work for hire" for everything. Outside the nine categories, the label does nothing for a contractor's work.
• One signature only. A commissioned work made for hire needs an instrument signed by both parties.
• Signing after delivery. Status is set when the work is created. Get the contract signed before work starts.
• No backup assignment. Without it, any work that fails the test stays with the creator.
• Forgetting brand and creator deals. Content a creator makes for a brand raises the same question, which is why our post on influencer contract tips tells creators to settle IP ownership and usage rights in writing.
• Assuming the license is the same as ownership. Sometimes a license is all the business needs, and it is cheaper. Our page on whether a license or assignment must be in writing compares the options.

What to do this week

1. List the work your business uses that contractors made, and the contract behind each.
2. Mark which items fall in one of the nine categories, and which do not.
3. For items outside the categories, get a short assignment signed by the creator.
4. Update your contractor template: work-for-hire language for qualifying work, a present assignment of everything else, a further-assurances promise, and disclosure of AI-generated material.
5. Register the works that matter most, naming the correct author.
6. Record the key assignments with the Copyright Office, as our page on recording a copyright assignment explains.

Frequently asked questions

Is a logo ever a work made for hire?

Only if an employee makes it within the scope of employment. A logo commissioned from a freelancer is not in any of the nine categories, so the business needs a signed assignment.

Can we sign the work-for-hire agreement after the work is done?

Circular 30 says status is determined by the facts when the work was created, so sign before work starts. An assignment signed later can still transfer ownership.

Does the creator have to sign a work-for-hire agreement?

Yes. For commissioned work, section 101 requires a written instrument signed by both parties, and Circular 30's checklist asks separately whether the commissioning party and the creator each signed.

Can the creator take back an assignment later?

Possibly, through statutory termination 35 years after the grant if the creator is an individual author. Works made for hire are not subject to termination.

Is a song recorded for a client a work made for hire?

A standalone song or recording is not one of the nine categories. Music written as part of a film or video can be, if the signed agreement says so.

Does the Copyright Office check whether a work is really made for hire?

The applicant decides, and the examiner generally accepts the statement unless the record contradicts it or the claim looks implausible (Circular 30).

Zala IP Law drafts contractor, commission and production agreements so ownership is settled before the work starts, and Shreepal J. Zala practices federal intellectual property law nationally. To review or update your template, request a consultation or call 404-313-1701.