Authorship vs. Ownership: Decoding the Doctrine of Work for Hire

26th November, 2024 - 6:27 am Categories: Copyright Infringement Copyright Litigation Corporate Law 0 Comments

INTRODUCTION

In copyright law, the difference between authorship and ownership is a key factor in deciding who actually holds the rights to a creative work. The primary function of this legislation is to protect “creative work” and alongside ensure that creators get “exclusive rights” for their original creation of their mind. Article 27 of the UDHR also protect such interests of the author. The Doctrine of Work for Hire sits at the core of this, especially in situations where there’s an employer-employee relationship or a contractual agreement. Essentially, this doctrine means that when someone creates a work, the employer or the person who commissioned the work can legally own it—even though the creator, or the author, may not have any ownership rights. This often catches creators off guard, as they may expect to own the rights to their work, only to find that, under certain conditions, those rights have transferred to the person or company who paid for it. Employees as well as independent contractors fall within the parameters of this doctrine.

“Yet the desire both to create and to be recognized as a creator is irrepressible. The creative process is both inherently individual and inescapably social. So even as the author has been submerged as employee, she claims recognition in modern copyright law in other ways–perhaps as a joint author or through moral rights[i]”

The Work for Hire doctrine is a double-edged sword. For employers or commissioners, it offers a sense of security and control over the work they’ve invested in. But for creators, it can mean losing ownership even after investing his skills and intellectual capacities and the chance to earn future royalties. As the digital and gig economies expand, knowing the ins and outs of this doctrine is vital for anyone working in creative fields—from artists and writers to software developers and content creators.

Broadly there are 2 elements under this doctrine. First one being Employee-employer relationship, wherein the work carried out by the employee during their “employment duties” automatically qualify as “work for hire”. For instance, A salaried graphic designer works for a tech startup to create a new company logo will fall under this. The graphic designer will have no rights over the logo and the company is free to use the same without needing his/her permission as the ownership for that logo vests with the company for it is created under the understanding that it was “work for hire.”

Second category of people are commissioned worker doing commissioned work which include independent contractors like consultant or freelancer. For this category of work to be classified as “work for hire” there ought to be an explicit written agreement stating all the rights, duties and liabilities. A magazine publisher might pay an author a fee to write an article or purchase an article the author has written independently. In these instances, the copyright typically remains with the author or creator, unless the rights are transferred to the publisher through a formal written agreement. Such works are referred to as “commissioned works.”

BREAKDOWN OF THE PROVISION GOVERNING “WORK FOR HIRE” AND “COMMISSIONED WORK”

Section 17 of the Copyright Act[ii] serves as the guiding star for determining ownership in these creative works. A simple breakdown of this provision encompassing various forms of artistic work is as follows:

The general rule says that it is the author of the work who is designated as the “first owner” of the copyright. But the section lays down few exceptions which are:

Works Created by Authors for Newspapers, Magazines, or Periodicals:

1. If an author creates a “literary, dramatic, or artistic work” as part of their employment for a “newspaper/ magazine/ similar periodical” (under a contract either service or apprenticeship), the publisher (proprietor) of the newspaper or magazine is the first owner of the copyright, but only for the purpose of publishing or reproducing it in the newspaper/magazine/similar periodical.

The author remains the first owner for all other purposes. {17(a)}

Commissioned Works (Photographs, Paintings, Films):

2. If someone commissions (pays for) a photograph, painting, portrait, engraving, or cinematograph film, the person who paid for it (the one who commissioned it) is the first owner of the copyright. {17 (b)}

Works Created During Employment (Other Than Newspapers and Magazines):

3. If a work is created by an employee as part of their job/employment, “under a contract of service or apprenticeship” (but not for a newspaper or magazine), the employer is the first owner of the copyright. {17 (c)}
   • For any public speech or address, the person delivering the speech is the first owner of the copyright. If the speech is delivered on behalf of someone else, that person (on whose behalf it was delivered) is the first owner. {17 (cc)}

Government Works:

4. For works created by or for the Government, the Government is the first owner of the copyright, unless otherwise agreed. {17 (d)}
   • For works made or first published by public undertakings (entities owned or controlled by the Government), the public undertaking is the first owner of the copyright. {17 (dd)}

Works Created by International Organizations:

5. If the work is related to international organizations (under section 41), the international organization is the first owner of the copyright. {explanation}

If the work is included in a cinematograph film, the author of specific parts of the work (such as scripts, music, or artistic elements) retains certain rights, even if clauses (b) and (c) would otherwise apply. {Proviso}.

LANDMARK RULINGS

The central issue which came up for consideration in Eastern India Motion Pictures Association vs. Indian Performing Right Society Ltd[iii] was whether a “producer of a cinematograph film” could override the rights of a “music composer or lyricist” by hiring and engaging them for the film. A clear-cut answer is present in section 17 of the act, precisely proviso (b) and (c). This provision outlines that a “producer of a cinematograph film” can indeed acquire these rights, but only in the manner specified in this provision. Reliance was also placed on Wallerstein vs. Hebert by respondent which is discussed in the subsequent paragraph.

According to the ruling in Wallerstein v. Herbert, the plaintiff’s music for the play Lady Audley’s Secret was written as part of “his engagement” to support particular dramatic sequences. The play itself regarded it as an essential component rather than a stand-alone work. Consequently, the plaintiff lacked any independent rights to the song.

In Eastern Book Company v. D.B. Modak (2008), the court examined who owns the copyright for works created by employees. The ruling stated that when an employee creates something as part of their job responsibilities, the employer is generally recognized as the initial copyright owner. However, if there’s a specific agreement in place that says otherwise, the ownership could differ.

EMERGING TREND OF GHOST-WRITING

Nowadays, a new concept is emerging known as Ghost-writing, wherein one person known “ostensible owner” enters into an agreement with another person, “Ghost writer” and he is hired to create content for them. In return for payment, the ghost-writer or the actual writer agrees to transfer their copyright to the “ostensible owner.” Therefore, even though the ghost-writer is the original creator of the work loses all the credit and in public domain the work is attributed to the ostensible owner.  A person may have the required training and knowledge on a given subject matter but might not have the required artistic skills in order to materialise that idea. In such circumstances, ghost writer comes to the rescue[iv].

The main aim of this act is to protect the expression of that idea rather than the idea itself. Going by this principle, in normal circumstances, it should be the Ghostwriter who should be granted that bundle of rights, but under this exception it is the ostensible author who enjoys those rights.

Section 17[v] explains who is considered the original owner of a copyrighted work. Typically, it’s the person who creates the work, meaning in a ghost-writing situation, the ghostwriter would usually own the copyright at first. However, in most ghost-writing agreements, the writer agrees to transfer their rights to the person who hired them (the ostensible author). This means the ghostwriter’s rights are often waived through the contract, allowing the ostensible author to take ownership.

The official transfer of these rights is covered in Section 18[vi] The ostensible author gains legal copyright ownership through an assignment, while the ghostwriter loses all ownership rights.  As a result, the work is publicly credited to the ostensible author, which is generally the goal of ghost-writing.

While the courts have addressed the issue of moral rights in such agreements, wherein they have laid down that the act in very clear terms clarifies that even when the economic rights have been transferred from actual writer to ostensible writer, the actual writer still has special rights which include “right to paternity” and “right to integrity” in their work[vii]. “The moral rights[viii] of the original author cannot be waived or transferred as they are the ‘soul of the author’s work’”[ix]

However, a very contrary stand was taken by the Delhi HC wherein it was held that if author’s work is completely destroyed, the original author is left with no moral rights[x].

WAY FORWARD

The “Work for Hire” doctrine creates a fine balance between who creates a work and who owns it under copyright law. While it gives employers and those who commission work a sense of security and control over what they’ve invested in, it can often leave the actual creators—writers, artists, and developers—without the rights to their own creations. This difference between being the author and being the owner is critical. Especially today, when the creative economy is growing rapidly through freelance work, collaborations, and digital content, understanding how this doctrine works is quite important.

There is fairly clear guidance on ownership of works created in the majority of employment environments, particularly with respect to Section 17 of the Act. But there’s also the fact that as creativity evolves, it is essential for all of our writers and composers — likely yourselves included — to have their economic and moral rights protected. From here, we need to be more forceful in demanding clearer contracts, better protections for individual creators, and broader public knowledge of creative rights management in the contemporary era.

Author: Anavi Jain, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i] Fisk, C.L., 2003. Authors at work: The origins of the work-for-hire doctrine. Yale JL & Human., 15, p.1.

[ii] Section 17 Copyright Act, 1957.

[iii] 1974 SCC OnLine Cal 14.

[iv] Anandita Anand, Anandita Srivastava, Navigating the rights of a Ghostwriter under the Copyright Act, Jurists Junction. https://juristsjunction.in/2024/05/20/navigating-the-rights-of-a-ghostwriter-under-the-copyright-act-2/#:~:text=Ideally%2C%20the%20ghostwriter%20being%20the,contribute%20ideas%20to%20the%20ghostwriter.

[v] Supra note ii.

[vi] Section 18 Copyright Act, 1957.

[vii] Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr., AIR 1987 Delhi 13.

[viii] Section 57 Copyright Act, 1957.

[ix] Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).

[x] Raj Rewal vs UOI & Ors., CS(COMM) 3/2018, with IA Nos. 90 and 92 of 2018.