Work for Hire vs Assignment: IP Ownership Explained

When you create something for an employer or client, who owns it? The answer depends on whether the arrangement is "work for hire" or requires a separate "assignment" of rights. The distinction has major implications for ownership and rights.

Work Made for Hire: Automatic Ownership

Under copyright law, "work made for hire" means the employer or client is considered the legal author from the start. You never owned the copyright—they did.

When Work for Hire Applies Automatically:

Employment Context

Work created by an employee within the scope of employment is automatically work for hire. The employer owns it without needing any contract language.

Independent Contractor Context

Work for hire only applies to independent contractors if:

1. There's a written agreement signed before work begins
2. The work falls into one of nine specific categories:
   • Contribution to a collective work
   • Part of a motion picture or audiovisual work
   • Translation
   • Supplementary work
   • Compilation
   • Instructional text
   • Test
   • Answer material for a test
   • Atlas

Assignment: Transfer of Existing Rights

Assignment is a transfer of ownership from creator to recipient. Unlike work for hire, the creator initially owns the work and then transfers that ownership.

Key Difference:

• Work for hire: Creator never owned it
• Assignment: Creator owned it, then transferred ownership

Why the Distinction Matters

Termination Rights

Under U.S. copyright law, creators can terminate assignments after 35-40 years and reclaim their rights. Work for hire has no termination right because you never owned it.

Duration of Copyright

• Work for hire: 95 years from publication or 120 years from creation
• Individual author: Life plus 70 years

Moral Rights (In Some Countries)

In countries with strong moral rights, authors retain certain rights even after assignment. Work for hire may eliminate these entirely.

What Contracts Typically Say

Most contracts use belt-and-suspenders language to ensure ownership transfers regardless of which legal theory applies:

"All Work Product shall be considered 'work made for hire.' To the extent any Work Product does not qualify as work for hire, Contractor hereby irrevocably assigns all rights to Company."

What to Negotiate

If You're the Creator:

• License instead of assignment when possible
• Retain rights for non-competing uses
• Get explicit license back for portfolio use
• Carve out pre-existing work
• Limit to work specifically requested and paid for

If You're Hiring Creators:

• Use both work for hire AND assignment language
• Ensure written agreement exists BEFORE work begins
• Clarify ownership of source files, drafts, etc.
• Include cooperation clauses for copyright registration