A Work Made for Hire Has Only Two Paths — and the Commissioned One Fails Unless All Four Conditions Are Met

The statute does not leave room for a third way in. A work made for hire is either "a work prepared by an employee within the scope of his or her employment", or a commissioned work that meets a further set of conditions.^[1]

The stake is who counts as the author. "Copyright in a work protected under this title vests initially in the author or authors of the work" — and for 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". Not merely the owner. The author.^[3]

A commissioned work qualifies only if it is used in one of the ways the statute names. The text covers a work 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".^[1]

And even then, only "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire". A logo, a photograph, a piece of software — none of those words appear in that list. This page does not say how courts have treated works outside it.^[1]

The agency puts it as a test: "A specially ordered or commissioned work is considered a work made for hire if it satisfies all of the following four criteria". Two of them are about the paper: "There must be a written agreement between the party that ordered or commissioned the work and individual(s) who actually created the work" and "The agreement must be signed by all parties."^[2]

And the failure rule is stated outright — "If a work fails to satisfy any of these requirements, it is not a work made for hire." Any one. Not most of them.^[2]

"Whether a work is a work made for hire is determined by facts in existence at the time the work is created." That is a timing rule, and it points backwards.^[2]

Separately, §201(b) attaches a default that can be varied: the employer owns all the rights "unless the parties have expressly agreed otherwise in a written instrument signed by them". Authorship and ownership are handled by different halves of that sentence.^[3]

Circular 30 was read as text extracted from a PDF, and the extraction interleaved the page's sidebar with its body in places. Only passages that came out as continuous prose were quoted, and the source is recorded as partially retrieved rather than full. This is the mirror image of a trap already on record — do not read an extraction artifact as the source's own wording.^[2]

Not established: how courts decide whether someone is an employee for this purpose; what happens to commissioned works outside the nine uses; whether a signature must precede creation. No case law was read. This is statutory text and one agency circular, and it is not legal advice. As of 2026-09-25.^[1][3]