“Work Made for Hire” Explained: Introduction
The phrase “work made for hire” is commonly found in entertainment industry contracts—particularly with regard to independent contractors. Many would be surprised to learn that the phrase “work made for hire”, often unwittingly “borrowed” from American contracts, has no legal significance in Canadian law. Is there a Canadian equivalent of “work made for hire”? How can you, as a producer, employee or independent contractor, properly understand and protect your rights? This blog will attempt to answer these questions.
Canada vs. U.S.
Work made for hire is a concept in American copyright law that applies to works made under a contract of employment and works made by an independent contractor where the work is commissioned under an agreement that explicitly states that the work is “work made for hire”.
In the U.S., when the work for hire doctrine applies, the employer or the party commissioning the work under an independent contractor agreement (we will call that person the “Producer”) is considered to be the author of the work and the first owner of copyright in the work. (Note that the Copyright Act uses the term “author” to refer to the creator of a work, though the term is not restricted to writing). If the work is created by an independent contractor under an agreement that does not explicitly state that the work is “work made for hire” then the independent contractor is both the author of the work and the first owner of copyright in the work.
Unlike the U.S., in Canada the individual who created the work is always considered to be the author of the work, regardless of whether the work was created in an employment or independent contractor relationship. However, if the work was created by an employee (i.e., is work made in the course of employment), the first owner of copyright in the work is the Producer employer. If the work was created by an independent contractor, the first owner of copyright in the work is the independent contractor. In that situation, the rights in the work, including the copyright, must be explicitly assigned to the Producer or they will remain with the independent contractor.
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In Canada the author of a work also has “moral rights” in the work. Moral rights are inextricably tied to the author and cannot be assigned, transferred or given away. They can, however, be “waived” meaning that the author promises not the enforce them.
In Canada there are three types of moral rights: (i) the right to the integrity of the work (which includes the right to prevent alteration of the work which might damage the author’s honour or reputation, and the right to prevent the work being used in association with a product, service, cause or institution); (ii) the right to be associated with the work (the right to be identified as the author of the work by name or pseudonym); and (iii) the right to remain anonymous.
If moral rights are not waived, an author could potentially stop a Producer from altering that author’s work or using it in certain contexts, both of which the Producer may require in order to produce its film, series, commercial or other project.
“Work Made for Hire” Explained: Conclusion
In order to best protect their interests Producers should include language in both their employment and independent contractor agreements that all of the work is considered “work made for hire” for the purposes of U.S. copyright law and “work made in the course of employment” for the purposes of Canadian copyright law, as well as an explicit assignment of all right, title and interest in the work to the Producer. In addition, Producers should obtain a waiver of moral rights in the Producer’s favour and in favour of the Producer’s successors, assigns and licensees.
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Updated to February 12, 2021
Edwards Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit https://edwardslaw.ca
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.