Authors at Work: The Origins of the Work-for-Hire Doctrine

Posted: 23 Oct 2001

See all articles by Catherine Fisk

Catherine Fisk

University of California, Berkeley - School of Law

Date Written: October 2001

Abstract

Under modern copyright law, "copyright in a work . . . vests initially in the author or authors of the work." Literary critics may consider the identification of the single "author" of a work to be difficult or even incoherent, and the whole notion of individual authorship to be a cultural construct and even a fiction. Copyright lawyers, by and large, do not. In the eyes of the law, identifiable people are the creators of all work eligible for copyright protection and attribution of authorship is simply a task of proof, not a process of cultural attribution in the way it might be when literary critics debate the authorship of the works of Shakespeare.

One significant exception to the law's disregard of the fiction of authorship is in the case of works "made for hire." Here, the law expressly recognizes the author as a legal fiction. If a work meets the statutory definition of a work made for hire, "the employer or other person for whom the work was prepared is considered the author" for purposes of federal copyright law.

The creation of the modern doctrine preceded its first appearance in the federal Copyright Act of 1909. Along the way, courts experienced some difficulty in accommodating the perceived demands of corporate control of intellectual property to a misty-eyed regard for the prerogatives of authors, artists, and composers. This paper is an analysis of legal evolution of the ownership of copyrights when the creative work was the product of an employee. It traces the earliest manifestations of the concept that employers own the copyright in the creative works of their employees through its acceptance as a settled doctrine. Not until the turn of the twentieth century did courts conclude that employers owned the copyright in the creative works of their employees in the absence of an express contract granting the employer the copyright. Throughout the nineteenth century, courts determined that works created by employees in the scope of their employment and works specially commissioned belonged to the employee unless the parties had agreed otherwise.

Just as eighteenth-century booksellers conjured up and deployed the modern author as a creative genius possessed of moral and legal entitlements as the proprietor of his creations for use as a weapon in their litigation for a copyright law that would protect against cheaper reprints, early-twentieth century firms used that same mythic genius in their effort to assert corporate control over an increasingly wide range of intellectual property. The employee writer, artist, or composer was transformed into the romantic genius and then merged into the corporate entity.

JEL Classification: N31, N81, O34

Suggested Citation

Fisk, Catherine L., Authors at Work: The Origins of the Work-for-Hire Doctrine (October 2001). Loyola-LA Public Law Research Paper No. 2001-21. Available at SSRN: https://ssrn.com/abstract=287608

Catherine L. Fisk (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 642-2098 (Phone)

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