Pre-Existing Confusion in Copyright's Work-for-Hire Doctrine

26 Pages Posted: 17 Dec 2002

See all articles by David Nimmer

David Nimmer

Irell & Manella LLP

Peter S. Menell

University of California, Berkeley - School of Law

Diane McGimsey

United States Court of Appeals for the Fourth Circuit

Date Written: December 2002


In order to protect authors and artists from unremunerative transfers of copyright, Congress for the first time created, in the Copyright Act of 1976, an inalienable right to terminate transfers of copyrights during a five-year window beginning 35 years from the date of the transfer. Such inalienablity, however, posed substantial uncertainty to the exploitation of many works of authorship. In particular, works combining multiple copyrighted elements - such as collective works and motion pictures - could become unavailable due to the difficulty of relicensing all of the constituent components. For that reason, Congress provided a mechanism for precluding termination of at least some transfers. In the case of a "work made for hire," the hiring party acquires ownership of the copyright upon a work's creation, thereby dispensing with any transfer from the author and hence obviating any termination of such transfer 35 years later. To avoid the exception swallowing the rule, Congress circumscribed the situations under which a work qualifies for treatment as a "work made for hire." It must either be prepared by a true employee or specially ordered or commissioned and fall within one of nine categories, such as "contribution to a collective work" and "part of a motion picture or other audiovisual work."

This article examines a potentially significant and heretofore unrecognized conundrum of the 1976 Copyright Act relating to the "contribution to a collective work" category. Congress defined "collective works" as comprised of "preexisting materials." Yet the work made for hire provision contemplates "contributions to collective works" being specially ordered or commissioned. How is it possible for a publisher or record label to specially order or commission contributions that already exist? The authors' journey into the complex evolution of the 1976 Copyright Act reveals that Congress did not intend that "contributions to collective works" preexist their commissioning, even though the inartful drafting of some of the Section 101 definitions suggest otherwise. For purposes of applying the work for hire doctrine, courts should either ignore the use of the term "preexisting" in the definition of "collective work," or interpret the term "contribution to collective work" to include "contribution to yet-to-be-assembled collective work" in the definition of "work made for hire." The article also elucidates the legislative history underlying the right to terminate transfers, a right which will have justiciable implications beginning in 2003.

Keywords: Copyright, Intellectual Property, Inalienability

JEL Classification: K11, K39

Suggested Citation

Nimmer, David and Menell, Peter S. and McGimsey, Diane, Pre-Existing Confusion in Copyright's Work-for-Hire Doctrine (December 2002). UC Berkeley Public Law Research Paper No. 109; UCLA School of Law Research Paper No. 02-33. Available at SSRN: or

David Nimmer

Irell & Manella LLP ( email )

1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
United States
310-277-1010 or (310) 203-7079 (Phone)

Peter S. Menell (Contact Author)

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

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Diane McGimsey

United States Court of Appeals for the Fourth Circuit ( email )

255 W. Main Street, Suite 230
Charlottesville, VA 22902
United States
434-296-7063 (Phone)

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