Under US federal copyright law, commissioning work from an independent contractor does not by itself make that work a work made for hire. Section 101 of title 17 recognises two routes only. The first is "a work prepared by an employee within the scope of his or her employment". The second covers specially ordered or commissioned work, and it reaches only a closed list of nine categories, and then only where "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire" (Cornell Legal Information Institute, 17 U.S.C. § 101, verified September 2026). Where neither route applies, the work is not for hire, and a client takes ownership of the copyright only through a transfer that is in writing and signed by the owner of the rights conveyed (Cornell LII, 17 U.S.C. § 204(a)).
The position below is United States federal copyright law and reflects 17 U.S.C. §§ 101, 201 and 204, current at October 2026. It is general information, not legal, tax or financial advice.
What does "work made for hire" actually mean in US copyright law?
It is a defined term in the statute, not a description of who paid for something. The definition in section 101 sets out the employee route in its own words: "a work prepared by an employee within the scope of his or her employment" (Cornell LII). Everything else has to come through the commissioned-work route described in the next section.
The reason the label is fought over sits in section 201(b): "In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright" (Cornell LII, 17 U.S.C. § 201(b)). Authorship moves, not merely ownership.
That is also why three words worth keeping apart get blurred in contract discussions. Authorship is who the statute treats as the author. Ownership is who holds the rights comprised in the copyright. A licence is permission to use something owned by someone else. A clause can address one of the three and leave the others untouched, which is a drafting question rather than a matter the statute settles for you.
When is a commissioned work a work made for hire?
Two conditions have to hold together. First, the work must fall within one of the nine categories that section 101 lists for specially ordered or commissioned work: "a contribution to a collective work", "a part of a motion picture or other audiovisual work", "a translation", "a supplementary work", "a compilation", "an instructional text", "a test", "answer material for a test" or "an atlas" (Cornell LII). Second, the parties must "expressly agree in a written instrument signed by them that the work shall be considered a work made for hire".
Neither condition rescues the other. A signed clause announcing that a deliverable is a work made for hire does not move that deliverable into the list if it does not answer to one of the nine descriptions. A translation delivered without a signed written instrument does not become for hire because both sides assumed it was. The list is closed, and it is not a general category covering any commissioned project.
Whether a particular piece of work fits one of the nine descriptions is a legal question about that work, and where the answer is arguable, advice on the specific facts starts to matter more than a reading of the section.
Here is how the statutory routes differ in who ends up as author and how a client acquires rights.
| Situation | Who the statute treats as author | How the client can hold the copyright |
|---|---|---|
| Work prepared by an employee within the scope of employment | The employer or other person for whom the work was prepared (§ 201(b)) | Automatically, unless the parties expressly agreed otherwise in a signed written instrument |
| Commissioned work inside the nine categories, with a signed written agreement that it is for hire | The person who ordered or commissioned it (§ 101, § 201(b)) | Automatically under § 201(b), subject to any contrary signed agreement |
| Commissioned work outside the nine categories | The person who created it | Only by a transfer in writing, signed by the owner of the rights conveyed (§ 204(a)) |
| Commissioned work inside the nine categories, no signed agreement | The person who created it | Only by a transfer meeting § 204(a) |
IFA is a membership body for independent professionals, and it does not draft, review or guarantee anyone's contract terms.
If it is not a work made for hire, who owns the copyright?
The person who created the work is the author, and the rights start with that author. A client who wants ownership has to acquire it, and section 204(a) sets out how: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent" (Cornell LII, 17 U.S.C. § 204(a)).
Two features of that sentence do a lot of work. The writing requirement is a validity requirement, so a transfer that does not meet it is not a valid transfer of ownership. And the signature the subsection asks for is that of the owner of the rights conveyed, or an authorised agent, rather than the buyer's.
The subsection also carves out transfers "by operation of law", which are transfers that happen through legal mechanisms outside the parties' own drafting. Those sit outside what a services contract is negotiating.
One thing the sections quoted here do not resolve is what permission, short of ownership, arises from the way an engagement was conducted and paid for. That is a separate analysis under other parts of US copyright law, and it is not answered by section 204(a). If an engagement is running on assumptions rather than terms, the more useful starting point is what a freelance agreement should include, which covers the ground before a dispute makes the question urgent.
What does a written assignment need to do?
At minimum, it has to satisfy section 204(a): an instrument of conveyance, or a note or memorandum of the transfer, in writing and signed by the owner of the rights conveyed or that owner's duly authorised agent (Cornell LII). That is the statutory floor for validity, and it applies to any transfer of copyright ownership other than one by operation of law.
The signature requirement is worth comparing with the for-hire route. Under section 101, a commissioned work in one of the nine categories becomes for hire only where "the parties expressly agree in a written instrument signed by them", which is both sides. Under section 204(a), what the statute requires is the signature of the owner of the rights conveyed.
Even the for-hire route is not fixed in one direction. Section 201(b) applies "unless the parties have expressly agreed otherwise in a written instrument signed by them", so a signed agreement can put ownership somewhere other than where the default would place it.
What the statute does not do is tell anyone how wide a transfer should be, when it should take effect, or how it should interact with payment. Those are drafting judgements about a specific engagement, and they are where a lawyer reading the actual contract does what an explanation of the sections cannot.
Standards and member frameworks are part of what IFA offers independent professionals.
How does this sit alongside employment status?
The first route in section 101 turns on two ideas, "employee" and "scope of his or her employment" (Cornell LII). So the copyright question and the classification question touch each other, without being the same question or being answered by the same body of law.
Classification depends on how the work is actually done rather than on the description written into an agreement, and the tests that decide it belong to separate parts of US law with their own purposes and their own deciding bodies. Those are set out separately in US independent contractor vs. employee status. Joining a membership body, IFA included, does not change anyone's legal or tax status.
This post is general information rather than legal, tax or financial advice. Rules differ between countries and change over time, and anyone with a live contract or a disputed deliverable should take advice on their own situation.
Frequently asked questions
Does paying an invoice transfer the copyright?
Payment is not one of the mechanisms in the statute. Where a work is not a work made for hire, ownership passes by a transfer that is in writing and signed by the owner of the rights conveyed or an authorised agent (Cornell LII, 17 U.S.C. § 204(a)).
Is software a work made for hire when a client commissions it?
Software is not one of the nine categories that section 101 lists for specially ordered or commissioned work, and that list is closed (Cornell LII). Whether any specific deliverable answers to one of the listed descriptions is a legal question about that work.
Can a contract simply call everything a work made for hire?
For commissioned work, a signed written agreement is one of two conditions, not the whole test. The work still has to fall within one of the nine categories in section 101. A clause does not put a deliverable in that list.
Who is the author if a work is for hire?
Section 201(b) provides that the employer or other person for whom the work was prepared is considered the author for purposes of title 17, and owns all of the rights comprised in the copyright unless the parties have expressly agreed otherwise in a signed written instrument (Cornell LII).
Does this apply outside the United States?
Everything above is United States federal copyright law under title 17. Other countries have their own rules on authorship and transfers, and none of them are described here.
Clients commissioning independent work can read how IFA frames the relationship from their side.
If a US engagement matters to either side, the ownership position is decided by which statutory route applies and what was signed, not by who paid for the work.