It is ideal for a business to employ policies and strategies to own intellectual property, not merely to receive an assignment or license thereto. One tool for doing so is to ensure that copyrightable works are created under effective "work made for hire" circumstances. In the United States, the initial owner of a copyrightable work is generally the person who reduces a copyrightable expression to a tangible medium. However, the individual who reduces a copyrightable expression to a tangible medium is not the owner if it is a work made for hire. A work made for hire exists generally when: (1) the work is prepared by an employee within the course and scope of employment for the employer; or (2) the work is prepared by an independent contractor who has signed a work made for hire agreement pursuant to 17 U.S.C. Section 101.
When the employment status of an individual who created a copyrightable work is unclear, courts consider numerous factors to determine whether the individual was an employee of another or an independent contractor. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court set out a nonexclusive seven-part analysis to determine whether a work is created by an employee as contemplated by the Copyright Act, rather than an independent contractor using traditional agency principles: essentially to ascertain "the hiring party's right to control the manner and means by which the product is accomplished." Id. at 751.
Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the...
