Work for Hire Scenario:

Scenario 1

John, an exempt employee at Aristotle University, is a talented programmer who has been working for the university for over seven years. He holds a master’s degree in computer science and on occasion teaches a distance education course in computer science for the Distance Education department.

John’s direct supervisor, Dr. Dennis Whitman, recently assigned John to work on development of a computer application that would more efficiently and effectively manage the tracking of Family Medical Leave applications for the Human Resource department. FMLA is a complex law that requires careful analysis of the qualification of an applicant for the benefit in order to avoid unnecessary expense and/or serious and costly liability. To work correctly, the application would need to weigh multiple variables, including exemptions. John was told he would be working with HR over a period of approximately six months about 25 hours per week on the FMLA tracking project. Dr. Whitman reassigned other projects John had been working on in order to allow John time to focus primarily on this one assignment.

At the conclusion of the design and development phase of the project, and after careful beta testing including some redesign and redevelopment, John was able to deliver a product that obviously had large market potential, not just in higher education but in diverse industries. John’s contribution to the project was unquestionable. In fact, John often worked on the code away from the university, sometimes using programming tools located on his own equipment. In the end, John not only created an application that met the initial needs of the university’s HR department, but based on his years of programming experience and talent, he actually contributed to the redesign of several HR processes and added features not initially anticipated in the pre-design phase of the project.

John has recently become aware that the institution has been approached by several other colleges and universities, as well as a couple of local manufacturing companies, interested in purchasing the application. In fact, because of the great and growing interest, as a follow-up assignment, John’s supervisor, Dr. Whitman, instructed John to develop a user’s manual of a publishable quality. John spent approximately 10 hours per week over a period of 7 weeks writing and editing the user’s manual.

John is very pleased with the application and is excited at the institution’s prospect of selling the application to other entities. John has received recognition from the institution for his excellent work in the form of a merit bonus and acknowledgement at a recent Employee Appreciation banquet.

After thinking it over carefully, John has approached Dr. Whitman with the assertion that, because of the great amount of effort, time, skill and personal knowledge that he invested in the design and development of the application, he now believes he owns the copyright to the product and insists that any profit gained from the sale of the application should be returned to him as the creator.

Does John have copyright to the application? If the institution sells the application to other companies, would they be infringing upon John’s copyright?

Answer:

Works for hire are materials created by employees as part of the normal scope of their employment. If you create something as a work for hire then normally your employer becomes the "author" of the work created. The life of a copyright from a work for hire is different from that of the normal copyright and last 95 years from publication/presentation of the work or 120 years from its creation, whichever period is shorter.

Scenario 2

Professor Readsalot currently serves as a member of the English Department’s curriculum committee. Professor Readsalot is enlisted by his colleagues and his Department Chair, Dr. Know, to take the results of the discussion of the committee and condense them into a position paper on behalf of the department.

Proud of his work, Professor Readsalot arranges to sell the paper through an academic publisher, claiming copyright to the work.

Can Professor Readsalot claim ownership of his writing?

Answer:

A “work made for hire” is defined in section 101 of the Copyright Act as:

A work prepared by an employee within the scope of his or her employment; or
A work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer materials for a test, as an atlas, or as a sound recording, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.