Indie Game Development and Works Made for Hire

If you live in the United States and when you are registering your game with the United States Copyright Office, you need to identify the author of your game and the party who administers the copyright. The general rule is the person who creates the game is considered the legal author for the game you intend to register.

A work made for hire is considered an exception to the rule. Works can be made a work made for hire in two ways: if a set of assets for the game is created by the employee as part of their regular job, or when it’s a certain type of game being developed by two or more parties as part of a written agreement between the main party and the other parties participating in the game’s development.

When a work is a work made for hire, any individuals who create the assets for the game is not the legal author. Instead, the employer or commissioning party is the legal author and copyright owner. Sometimes, a person is an employee like a bank teller working at a bank. To determine whether someone is an employee, you will have to consider several factors relating to the relationship between the person and the organization, how that person is paid, how benefits and taxes are handled, and who provides the space, materials, or tools needed to create the game.

If the work is ordered or commissioned, most Copyright Acts around the world identify a number of factors such as contributions to the game, localizations, or instructional text. These can be commissioned as works made for hire. If they meet the requirement, the parties must expressly agree in a signed contract that the work is a work made for hire. Simply calling a work “a work made for hire” or paying someone to create the work without a contract does not make it a work made for hire and the persons contributing would own the rights to their assets. Circular 30 has a complete list of factors to consider for determining if a person contributing is an employee, as well as definitions for some types of works that you can commission.

There are seven questions to consider. You’ll have to ask yourself if the work was created by an employee while acting within the scope of their employment, if you set up a written agreement between the commissioning party and the creator of the work and if the agreement was signed by either party, or if the parties expressly agree the game would be a work made for hire.

Let’s look at a few examples involving Drillimation where the work made for hire principal is applied.

  • The Prophet Driller of Drillimation wrote, programmed, and designed the entire Chuhou Joutai trilogy, and published it himself. It is not a work made for hire and Drillimation Systems is the sole owner of the games he produced.
  • The Prophet previously worked at a tech support firm where he received a salary and benefits. His job was preparing spreadsheets for each call he took. These spreadsheets are works made for hire, and the employer is the owner of them.
  • The Prophet is also a freelance English-to-Japanese translator. He was once contracted by Shotgun Anaconda to translate the Steam store page text for the game Velocity Noodle. Before beginning the translation, he had to agree to an agreement with Shotgun Anaconda stating the translation would be a work made for hire. As a result, Shotgun Anaconda is the author of said translation.

The last two are works made for hire. When a work is considered a work made for hire, the employer or commissioning party owns the copyright and is the legal author. The individuals involved with creating the work cannot be named in a U.S. Copyright Office registration application.

In the United States, corporate authorship of a work also has different rules for the term of copyright protection. For individuals, copyrights last for the duration of their life plus an additional seventy years after their death. For works made for hire, copyrights last for 95 years from their first date of publication. Termination provisions do not apply to works made for hire.

NOTE: This is for informational purposes only and does not constitute legal advice. Please consult an attorney if you need assistance.


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