Q. Does a commissioned piece of art created without a contract fall under the work-for-hire agreement, which states that the copyright is completely transferred, allowing the buyer to modify and resell the artwork?
A. The copyright law defines a work made for hire as a work especially ordered or commissioned pursuant to a written contract, that is, (1) a contribution to a collective work, (2) part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, or (9) an atlas; or a work created by an employee within the scope of his/her employment.
The U.S. Supreme Court has stated that, for purposes of the work made for hire doctrine, the individual must be an employee in the employment-law sense. That is, the individual must have taxes withheld and employment benefits provided. In all other cases, a work is not a work made for hire, and the artist creating the work retains the copyright unless it’s assigned (transferred) by the artist.
Regardless of whether the work is a work made for hire (in which case the employer owns the copyright) or not (in which case the artist retains the copyright), the copyright law makes clear that the exclusive right to sell a copyrighted work attaches only to the first sale. For this reason, even copyrighted works can be resold by their owners without restriction. These works, however, cannot be modified without obtaining the copyright owner’s permission, because the exclusive right to create derivative works belongs to the copyright owner. Note that other countries do not follow this definition of work made for hire, so different rules may apply outside the U.S. borders.
Note: Copyright laws are subject to change. This article was originally published in the March 2008 issue of The Artist’s Magazine and reflects the laws in effect at the time the article was written.
Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.