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Can software be considered a "work for hire" under the Copyright Act?

2/7/2018

 
If the software was the creation of an employee that was made within the scope of his or her employment -- yes, it can be considered a "work for hire."

However, if an independent contractor was hired to develop the software, the answer is probably not.  Most software is categorized as a "literary work" under the Copyright Act.  The work for hire doctrine, however, only recognizes nine valid categories as valid works for hire:

1 as a contribution to a collective work, 2 as a part of a motion picture or other audiovisual work, 3 as a translation, 4 as a supplementary work, 5 as a compilation, 6 as an instructional text, 7 as a test, 8 as answer material for a test, or 9 as an atlas, 

17 U.S.C. Section 101.

Notice that "literary works" are not included anywhere within the list.  The upshot is that most software cannot be considered a "work for hire" even if there is an agreement between the parties that it will be.

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