An important copyright issue is whether a work is “for hire.”

Employed Artists. Copyright in works of regular employees are presumed to be owned by their employers. Thus, in the absence of agreement to the contrary, employers own all rights in works created within an employee’s scope of employment.

Free-Lance Artists and Entrepreneurs. In contrast with employees, free-lance artists and entrepreneurs are ordinarily presumed to own copyright in their work even though there is only one copy, and it is sold. However, a party commissioning a work might insist that it be “for hire” — particularly if it contributes to a still larger work. If (1) this is in writing and (2) the work may be so classified under the definition of “work made for hire” in § 101 of the copyright statute, then both the work and any copyright in it are owned by the party who commissioned it.

Ownership. This issue is most important: As between those who own copyright in works made “for hire” and artists who actually created them, the latter have no more rights than total strangers. Thus, substantially similar later works will infinge. Freelance artists in particular need to consider carefully what they may be giving up by allowing commissioned works to be regarded as for hire.
The term of copyright. Rights in works for hire span 120 years from the date of creation or 95 years from the date of publication, whichever is shorter. The term for other works (at least when the artist is identifiable) extends for the artist’s lifetime and 70 years beyond. Indeed, in the case of joint works, copyright endures for 50 years beyond death of the last surviving contributor. More information.

Copyright transfers may revert. Rights in a work not for hire revert back to the artist (or the family of those who are deceased) after approximately 35 years — even if copyright has been unconditionally sold or licensed to another. Although these time spans dramatically exceed the market life of most works, whether a given work is one for hire is usually a simple matter to resolve at the time of a transfer. One thing is sure: Families of more than one living artist will likely regret that care was not taken to deal with this issue.