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There are only two situations where you can have a work for hire situation (when the copyrighted work would not belong to the author but to the person paying for the content):
(1) The first situation applies only when the work's creator is an employee, not an independent contractor.
(2) the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual 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; AND the work must be specially ordered or commissioned; AND there must be a written signed agreement between the parties specifying that the work is a work made for hire.
So if the author is not an employee, then for it to be a work for hire ALL THREE of the conditions listed above must be met. If even one is not met, it is not a work for hire.
In terms of the photographs, only if the photographs were taken by the author of the article, or otherwise owned outright (i.e. no license) would the photographs be subject to such a work for hire situation as well.
Now the employer and the independent contractor can still enter into an agreement for the transfer of the copyright. Work for hire only says who owns the copyright from the beginning. If work for hire does not apply, the employer can still get the rights, but would have to get an assignment of these rights from the copyright holder.
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I'm not following your statement "RGMacEsq :
So if the author is not an employee, then for it to be a work for hire ALL THREE of the conditions listed above must be met. If even one is not met, it is not a work for hire."
Which three conditions are you referring to?
As a freelancer, I have publishers try to buy all right from me, often, by saying in my assignment sheet/agreement -- that the work being contracted is a "work for hire". And, they tell me this means they are buying all rights -- essentially my copyright.
My concern is -- if I'm sloppy and don't read every word of an agreement and the phrase "this is a work for hire" is included -- have I lost my copyright/ownership to the work?
I get it. Sorry. I didn't read well enough. As to assignment -- we're using it in different context -- but I understand what you're say.
When I get an assignment -- as a journalist -- it's to cover a story. I don't mean to "assign" my work/copyright.
So, from what you're saying -- my understanding is -- if the agreement says, "work for hire" that language would supercede any other language and is the key phrase to look for -- other than "we're commissioning all ownership/copyrights".
My concern is how entities use work for hire with folks who don't know what the phrase means and don't understand what they're giving up.
So, I've got it. Thank you.
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