Have you ever hired anyone to create something for you or your business? If so, read on. Under United States law in the majority of instances, the person who created a work is its author for purposes of copyright protection. However, one exception is when an independent contractor is specially ordered or commissioned to produce a work under a properly drafted written agreement. This specific circumstance constitutes a work made-for-hire, where the person or entity who hired the independent contractor (not the independent contractor herself) is then the owner of the work.
Of course, determining whether a work is one made for hire can be tricky. The first step is to establish whether the person who prepared the work is an employee or an independent contractor. If it was an independent contractor, then under Section 101 of the Copyright Act, the work must have been specially ordered or commissioned for use and there must have been an express written agreement between the parties that the work was made-for-hire. Such an agreement is typically called a “work-for-hire” agreement.
An example of the complications with works made-for-hire is the recent suicide of Mick Jagger’s girlfriend, L’Wren Scott, which resurfaced Jagger’s longstanding feud with artist Ruby Mazur. In the 1970’s, Jagger paid Mazur $10,000 for Mazur to create the original “mouth and tongue” artwork for the Rolling Stones’s “Tumbling Dice” album. Since then, the image has become an iconic piece and one of the most recognizable logos in pop culture. Perhaps taking things too far, Mazur said (referencing Scott’s suicide), “I feel for [L’wren]…Had I not been as strong, with great friends, I might have hung myself too.”
Mazur stated he asked Jagger repeatedly to give him trademark rights in order to reap fair earnings for his work, but Jagger refused. Indeed, Mazur tried to sue Jagger for trademark infringement in the 1990’s, but too much time had elapsed. Mazur now claims that the experience drove him to depression and suicidal thoughts.
While this was an unfortunate outcome for Mazur, Jagger structured the deal correctly, having an express written agreement with Mazur to create the image and paying Mazur for his work. Mazur was an independent contractor and the transaction was a work made-for-hire squarely within the Copyright Act’s definition.