Re: Work for Hire

On Mon, Sep 21, 1998, John Allison <allisonj[_at_]mail.utexas.edu> wrote:
>
> On 9/17/98, Mike Bradley <mike[_at_]sphinx.com> wrote:
> >
> > On Wed, 16 Sep 1998, John Noble <jnoble[_at_]dgsys.com> wrote:
> > >
> > > On 9/15/98, Grant Herndon <grherndon[_at_]zeus.kern.org> wrote:
> > > >
> > > > In a work for hire agreement between an organization and a
> > > > non-employee, is consideration required? If the non-employee is
> > > > furnishing tape-recorded oral history as the work for hire, would
> > > > free copies of any transcript created be sufficient consideration
> > > > to support the work for hire arrangement?
> > >
> > > A contract generally requires consideration. A transcript is probably
> > > sufficient, but you might want to throw in a peppercorn. However,
> > > even your bare recitation of the facts suggests that there are issues
> > > here which may be more important than those you have identified.
> >
> > But in terms of (US) copyright law, all that is necessary is a written
> > agreement that the work is a work made for hire. I doubt there is a
> > need for consideration in order for the copyright provision to take
> > effect.
>
> Black-letter contract law: I promise to pay you X $$$ (or promise to
> anything else you aren't already legally obligated to do) if in return
> you will create this work as a work-for-hire and sign this document.
> Consideration is present. It virtually always is present. In all but a
> few cases, the same evidence proving that the parties made an agreement
> will simultaneously prove consideration for any unperformed promise.

My understanding is that a "work made or hire" cannot be created by agreement. It either exists or does not exist based on the facts. The non-employee can assign all of his underlying rights in the work to the party who engages him to perform the work, but that assignment does not make it a "work made for hire" as defined by the Copyright Act. This may seem picky, but I think it has significant implications for completion of the appropriate copyright registration application form. If you designate such a work as a "work for hire" on the application for registration, the copyright may be flawed.

Bernard Gerdelman
Paule, Camazine & Blumenthal, P.C.
165 N. Meramec, Ste. 600
St. Louis, Missouri
attorney[_at_]i1.net Received on Tue Sep 22 1998 - 17:32:24 GMT