The work for hire clause: what an independent contractor gives away, and what to keep

U.S. copyright law gives the author of a work its copyright. “Work made for hire” is the exception: the person who paid for the work is treated as the author from the start. The Copyright Act allows that in two cases only.¹²

1. An employee’s work made within the scope of the job. Your own staff’s work belongs to your firm this way.
2. A commissioned work, made by someone outside, but only if it falls into one of nine categories and both sides sign a written agreement calling it a work made for hire. The nine: a contribution to a collective work, 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, and an atlas.

Your firm is not the client’s employee. So for the label to work, what you deliver has to fit one of the nine. A training video might. A test bank might. A web application, a mobile app, a brand identity or a marketing strategy usually does not fit any of them cleanly. For that work, the “work made for hire” sentence in the client’s MSA may do nothing on its own.

Who counts as an employee is a question of fact. The Copyright Office points to the Supreme Court’s test in Community for Creative Non-Violence v. Reid: control of the work, who supplies the tools, how the person is paid, and how long the relationship lasts.¹ A firm with its own clients, tools and invoices is not close.

Why clients still ask for it. Two reasons. First, a work made for hire is owned by the client from the first line. Second, an author who assigns copyright can, under the Copyright Act, take it back during a five-year window starting 35 years after the grant, and that right cannot be waived; a work made for hire has no such right.³ So the client’s lawyer writes both: “this is a work made for hire, and to the extent it is not, Provider assigns it.” The assignment is the sentence that carries the weight. A transfer of copyright needs a writing signed by the owner.⁴

Three phrases do the damage:

• “In connection with this Agreement.” Anything you improve while on the project, even your own internal library, can be argued in.
• “Methods and know-how.” Read literally, the way your team works becomes theirs.
• “Including any pre-existing materials incorporated therein.” The component library, the scripts, the design system you carry from client to client: once one piece lands in their build, the clause reaches back for it.

And “hereby irrevocably assigns” moves ownership the day the work exists, before anyone has paid.

“Background IP” (or “pre-existing IP”, or “Provider Materials”) is what you bring to the project and what you build for general use: code libraries, starter kits, templates, test frameworks, design systems, prompts, playbooks, and the skill of your people. “Foreground IP” is what you make specifically for this client: their app, their brand, their report.

A fair line between them:

• The client owns the foreground, once it has paid for it.
• You own the background, including improvements to it that are not specific to the client.
• The client gets a license to the background that sits inside its deliverables: permanent, free of further charge, limited to using and changing those deliverables. It can run its app forever without asking you. It cannot resell your library.
• Open-source components come under their own licenses, and you say so.
• Your people’s general skill is no one’s property.

Name your main background items in the SOW. A line such as “Provider’s React component library and its CI templates” gives the client’s lawyer something concrete to check, instead of a category to fear.

Check your own paper. If a freelancer wrote part of the deliverable, you need a written assignment from that freelancer before you can pass ownership on. Have one in every subcontractor agreement.

California note. Under California’s Labor Code and Unemployment Insurance Code, a person engaged by contract for a specially commissioned work, under a signed agreement that calls it a work made for hire, can be treated as an employee for workers’ compensation and unemployment insurance.⁵ If you are a solo consultant in California, or you engage individual freelancers there, use an assignment instead of the work for hire label.

UK note: UK law has no work made for hire for contractors. An employer owns its employees’ work made in the course of their job, while a contractor keeps copyright unless it assigns it in a writing it signs.⁶

Replace their clause with an assignment that turns on payment, and a carve-out for what you bring:

If they insist on the work for hire words, let them stand for the deliverables and fix the scope instead. Add: “Nothing in this Section applies to Background IP.” And, in California, add: “Provider is an independent business and not an employee of Client for any purpose.”

If they push for ownership before payment, give them use, not title:

In the client’s Word file, with changes tracked:

1. Strike the first sentence (“deemed works made for hire”). Comment: “Most of the work under this SOW does not fall within the statutory categories; the assignment below does the job.”
2. Before “Supplier hereby irrevocably assigns,” insert “Subject to payment in full for the relevant Deliverable,” and change “hereby irrevocably assigns” to “assigns.” Comment: “Ownership moves with payment; you have a license to use everything before that.”
3. In the definition of Work Product, strike “methods and know-how” and “including any pre-existing materials incorporated therein,” and add “excluding Background IP.” Comment: “These are the tools we use for every client; you get a permanent license to them inside your deliverables.”
4. Insert the Background IP, License and Third-party components paragraphs from the counter above.

Tommos (tommos.ai) is a CRM whose AI agents, the tommos, take a B2B inquiry to a signed contract. On the Sign plan, $899 a month for the firm, Tommo Legal reads the client’s MSA against positions you write once: here, that the client owns deliverables once paid, and that your background IP stays yours with a license.

Its clause memo lists only the clauses that depart from those positions. For each one: their words and section, your position, what it would mean for you, the wording ready to paste, how confident it is, and whether the point is worth a lawyer. When their MSA is a Word file, the same changes go in as tracked changes, beside their original in the client’s folder in your Google Drive. You accept, change or drop each point. Tommo Legal never writes to the client; Tommo Closer sends the points you accepted with the link to the redline.

Tommo Legal also drafts your SOW as a Google Doc from your own template, with the scope, price and dates from your estimate, so your Background IP list goes in every time. When the paper is agreed, a person you allow to sign presses Sign on the card and signs in an electronic signature window inside it, with the signature service’s certificate and its record of who signed and when, in the price of Sign. The memo is research, not legal advice.

What Tommo Legal does · Every plan

• A work made for hire makes the client the author, but for an outside firm it covers only nine kinds of work, with a signed writing.
• The assignment in the client’s clause is what moves ownership. Negotiate that sentence.
• Let ownership of deliverables pass on payment; give a license for use before then.
• Keep your background IP and license it inside the deliverables. Name it in the SOW.
• Get written assignments from your own freelancers before you promise ownership to a client.
• For the other nine clauses of a client’s MSA, see the ten-clause review and the MSA checklist.

This is not legal advice. For a large deal, or IP your business depends on, an hour of an IP lawyer’s time is worth it.

1. U.S. Copyright Office, Circular 30, “Works Made for Hire”, read Oct 13, 2026
2. 17 U.S.C. § 101, definition of “work made for hire”, Cornell Law School LII, read Oct 13, 2026
3. 17 U.S.C. § 203, termination of transfers and licenses granted by the author, Cornell Law School LII, read Oct 13, 2026
4. 17 U.S.C. § 204(a), execution of transfers of copyright ownership, Cornell Law School LII, read Oct 13, 2026
5. Farella Braun + Martel, “Employment Law Issues to Consider Before Including Work Made for Hire Clauses in Contractor Agreements” (Apr 29, 2021), on Cal. Labor Code § 3351.5(c) and Cal. Unemployment Insurance Code § 686, read Oct 13, 2026
6. Copyright, Designs and Patents Act 1988, sections 11 and 90(3), legislation.gov.uk, read Oct 13, 2026