Martha Graham, Professor Miller and the Work For Hire Doctrine: Undoing the Judicial Bind Created by the Legislature

The current work for hire doctrine, as embodied by 17 U.S.C. Sections 101 and 201 and interpreted by the judiciary, provides a default rule of copyright ownership in favor of employers where a work is created by an employee in the scope of employment. In the absence of a written agreement, a finding that an engagement is a work for hire under the statute automatically results in all ownership being vested in the employer. This result often contradicts business norms and the understanding of one or both of the parties. In this Article, the author advocates abolishing the all-or-nothing concept of ownership in favor of a more particularized analysis that emphasizes the expectations of the parties. This would involve first reversing the current, pro-employer statutory presumption and then analyzing whether, and to what extent, the employer may have a license to the work