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Normally, when a person or group creates a copyrightable work--whether a song or a computer program or a sculpture--the person(s) creating the work has a copyright in the work.

A work for hire occurs when a person creates a copyrightable work but does not own it. In this instance, the Copyright Act allows for the copyright to go to the person who hired the creator to make the work.

There are two instances in which a work can be considered a work-for-hire, according to Section 101 of the Copyright Act of 1976:

1. A work prepared by an employee within the scope of his or her employment
2. A work specially ordered or commissioned for use as a contribution to a collective work, as a 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 material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence...an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

If you are an "employee" (a definition that traditionally does not include academic faculty), any work that could be considered within the scope of your employment could be claimed by your employer as a work-for-hire unless you have a written agreement with your employer stating otherwise. For example, if you are an instructional designer and you write an article for a journal on an instructional design topic, your employers might have a valid claim of ownership in that work--even if they weren't involved in your contract with the journal.

It's definitely better to play it safe if you fall into this category...When I worked as a staff writer for a newspaper many years ago, I was advised to get written ownership clearance for every type of freelance writing I did--from movie reviews to cookbooks--even though my primary job responsibilities focused on reporting of courtroom issues.

In the case of contracting with an outside developer for your course materials, the circumstances are exactly the opposite. International laws favor the person who "expresses" the idea, even if that person is a paid consultant or freelancer.

When developing materials with consultants, freelancers, or others, you must always specify in writing that the work is a "work for hire" or "work made for hire" and the agreement should specify who can claim copyright on the material, as well as who has the right to reprint, condense, or translate the work and to produce it in other forms (and if you want to be thorough, I suppose you can ask for the theme park rights as well!)

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