Cover of the March/April 2022 issue of The Dramatist
TABLE OF CONTENTS
DG Glossary: Work For Hire

Knowing and understanding industry terminology is vital to negotiating and working in the theatre. From time to time, we will be highlighting terminology that is important for all dramatists to understand.

Graphic for DG Glossary

“Work for hire” is a legal doctrine that has been incorporated into the U.S. copyright law. It provides that, under certain circumstances, the authorship and ownership of a copyrightable work is invested not in its creator but in the employer or commissioning party that hired the creator.

For example, those who write for film and television are considered employees who write scripts on a “work for hire” basis. As employees, those writers are permitted to form a union (the WGA) that collectively bargains on their behalf, gaining pay minimums, enforceable standards, and access to health care, pensions, and vacation pay. Writers for the theatre, on the other hand, are not considered employees under current law, but as independent contractors and property owners who license their work, and so are not permitted to unionize. (The Dramatists Guild is a member of a coalition of creative professionals who co-filed a request with the Federal Trade Commission and the Department of Justice for collective bargaining rights on behalf of creators of copyrighted works everywhere. Click here to learn more.)

Therefore: “Work for hire” can exist in an employer-employee relationship, where the work is created within the scope of the creator’s employment (note that this definition of “employee” does not include freelancers, like dramatists); or

A “work for hire” agreement can be made with an independent contractor, under the following circumstances: There is a written agreement that explicitly states the product will be a “work for hire,” AND the product fits into one of nine categories specified in the Copyright Act (which include authorship of audio-visual works but not dramatic works).

Dramatic works are not one of the nine categories of “work for hire,” so a “work for hire” agreement with a dramatist will typically include the sentence, “If for any reason the Author’s work should not be deemed a “work for hire, Author hereby assigns the copyright in perpetuity to the producer/theatre/etc...”

“Work for hire” agreements are different from a standard copyright assignment because an assignment, like any other disposition an author may make of their work, is terminable by the author at a point in the future, allowing the author to recapture their work. This termination mechanism gives authors with no bargaining leverage an opportunity to renegotiate the terms of dispositions a point when a work’s value has been more clearly defined.

Even a “perpetual” assignment can be terminated, but a “work for hire” is not terminable because the creator of the work was never its legal author and so termination rights are inapplicable.

While a dramatist might assign their copyright under certain rare and limited circumstances, it is never appropriate to author work for the theatre on a “work for hire” basis.