From Lexology, David O.Klein of Klein Moynihan Turco, LLC offers recommendations for addressing work-for-hire provisions for independent contractors. David writes:
How to Establish a Work-for-Hire Relationship with an Independent Contractor
While an employee/employer relationship will automatically give rise to work-for-hire status for all works created by the employee in the scope of her/his employment, contracting parties can only designate copyrightable works as works-for-hire under certain circumstances. According to the Copyright Act, in the absence of an employer/employee relationship, only certain works can be designated as works-for-hire contractually including, but not limited to, “a work specially ordered or commissioned for use as a contribution to a collective work.”
Thus, for example, properly drafted work-for-hire language could be valuable in connection with software/hardware development agreements where a given contractor’s efforts are part of a collaboration of multiple parties. However, given the risks involved if a work-for-hire relationship is deemed not to exist, and the lack of clarity about classifying individuals as independent contractors vs. employees, it is vital that any contractual work-for-hire provisions include clauses that ensure a complete copyright transfer where a court or other adjudicator of fact determines that work-for-hire provisions do not apply.
Making Work-for-Hire Work for You
Without properly drafted work-for-hire and copyright transfer provisions, business entities commissioning works from third parties may leave themselves without sufficient intellectual property rights in and to the works purchased.
Accordingly, it is highly recommended that you retain qualified legal counsel to ensure that any work-for-hire provisions that you intend to use, or currently use, are drafted and/or revised, as applicable, in order to ensure that they will grant you the broadest and most complete ownership rights possible.
Read the full story at Work-For-Hire Clauses and Agreements: One Key to Intellectual Property Ownership
Please note that in California, work-for-hire provisions will lead to a classification of a worker as an employee. See The California “Work for HIre” Trap: Your Consultant May Be Your Employee
