Commissions and Copyright: What You Need to Know

The general rule of copyright is whoever creates a work becomes the legally recognized author. An exception to the rule is whenever a work is designated as a work made for hire, either as part of an employee’s regular job or as part of a certain type of work done as part of a written agreement between the creator and a party ordering/commissioning it.

Sometimes, there are freelancers who offer commissions for a fee. But who actually owns the right to the commissioned work? In this article we will explain the role of copyright law in commissions.

Drillimation’s Perspective on Commissions

Drillimation Systems has used commissions as a form of marketing to get their word out. Over the summer, Drillimation teamed up with Malaysian composer FanTouhouMusic to create a remix of Kagami Ochiai’s theme in their style. This involved not only the song itself, but a piece of art depicting Kagami to go along with it.

Drillimation Systems owns the rights to the original musical work and character itself. Because the person who created said remix was an individual and not a corporation, FanTouhouMusic owns the rights to that remix and the accompanying art. Because of this, they are subject to different rules since things are owned and licensed separately.

We paid money for this. Simply paying someone does not automatically make it a work made for hire. If you are talking with an artist about a commission, and you intend to own the rights to their work, you and the artist should expressly agree in a signed written contract stating it would be a work made for hire.

What Can You Commission as Work Made For Hire?

A commission can be a work made for hire if you satisfy all of the below criteria:

1. The commission must fall under any of these nine categories, either as:
   • A contribution to a collective work
   • Part of a motion picture or other audiovisual work
   • A translation
   • A supplementary work
   • Part of a compilation
   • Instructional text
   • Answer material for a test/exam
   • Part of an atlas
2. You, the artist, and any other parties must sign a written agreement. In the agreement, all of you must expressly agree that the commission is a work made for hire.

If you do not satisfy any of the above, then it is not a work made for hire.

Differences Between a Work by One Author and Work Made For Hire

Designating a work as a work made for hire also affects copyright ownership, its term, and termination rights for the commission.

• When designated as such, the party commissioning it becomes the legally recognized author.
• The term of copyright protection is 95 years from publication and 120 years from creation.
• Termination rights do not apply for works made for hire.
• If you are registering the commission with the United States Copyright Office, you must determine if the work is made for hire. The determination should be based on the facts that exist when the commission was created. The examiner generally accepts your representation that the commission is work made for hire unless it is contradicted by information known to the examiner or available in the registration materials or within the Copyright Office’s records. If the claim is unusual or implausible, you may be subject to further questioning by the examiner or otherwise have your registration application denied.

What is Considered a Work Made For Hire?

The parties involved with a commission must determine if the work should be made for hire. We are unable to provide any legal advice about a work’s status, but there are a series of questions below to help you decide if your commission would fit within the US Copyright Act’s definition for work made for hire. The examples below illustrate the factors on whether or not a work may qualify as a work made for hire.

• Was the commission done by an employee acting within their scope of employment?
• Was there a written agreement between you and the artist doing the commission? Was that agreement expressly agreed upon and signed by both parties?
• Was the commission answer material for a test, translation, or as part of an atlas, motion picture or other audiovisual work, compilation, contribution to a collective work, or supplementary work?

If the answers to all of the above are yes, the commission is considered a work made for hire. If not, the commission is not a work made for hire.