Does “Work Made for Hire” Mean You Own Your Logo?

Many design, development, and content agreements we review contain some version of the same sentence: “All work produced under this Agreement shall be a work made for hire.”

Business owners read that sentence and stop worrying. They paid the invoice, they got the files, the contract says the magic phrase. They assume they own the copyright in the deliverables. Often, they do not.

“Work made for hire” is not a label the parties get to apply by agreement. It is a narrow statutory category, and if the work you commissioned falls outside it, as logos, websites, and software usually do, the clause does not establish work-made-for-hire status or itself transfer copyright. And the copyright stays with the person who created it.

That gap tends to surface at the worst possible time: during diligence on a financing round, in the middle of an acquisition, when you are trying to record a trademark assignment, or the week a former contractor decides your rebrand looks a lot like the work he still owns.

What the statute (17 U.S.C. § 101) actually says

There are exactly two ways a work becomes a work made for hire under federal law. Both are set out in 17 U.S.C. § 101.

Path one: an employee. A work prepared by an employee within the scope of employment is a work made for hire, automatically. The employer is treated as the author and owns the copyright outright, “unless the parties expressly agree otherwise in a signed writing.” 17 U.S.C. § 201(b).

The catch is that “employee” here does not mean whatever your contract calls the person. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held the term employee is interpreted under the general common law of agency and rejected control over the final product as the sole test. The Court pointed to a list of non-exclusive factors: the right to control the manner and means of the work, the skill required, who supplies the tools, where the work is done, the duration of the relationship, whether additional projects can be assigned, the worker’s discretion over hours, the method of payment, who hires and pays assistants, whether the work is part of the hiring party’s regular business, and whether the worker receives employee benefits and is treated as an employee for tax purposes. No single factor decides it.

Your freelance brand designer, working from her own studio on her own laptop for a fixed project fee, is unlikely to be an employee under that test.

Path two: one of nine listed categories. For everyone who is not an employee, § 101 permits work-made-for-hire status only if the work is “specially ordered or commissioned” as one of nine things, and the parties expressly agree in a signed writing that the work is a work made for hire. The nine categories are:

a contribution to a collective work
a 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
an atlas

That list is exclusive. Congress did not leave room for an additional category, and courts have not created one.

Read the list again, and notice what is missing

There is no entry for a logo. No entry for a brand identity system. No entry for a website. No entry for software or a mobile app. No entry for a standalone photograph. No entry for packaging design.

These are the assets small and mid-sized businesses spend the most on and depend on the most, and they are precisely the assets a work-for-hire clause is least likely to reach. Two of the categories that look promising are narrower than they sound: § 101 supplies its own restrictive definitions of “supplementary work” and “instructional text,” so a designer’s deliverables do not become a “supplementary work” just because they supplement your brand.

Websites are the hardest case, because a website is not one work. It is copy, photography, illustration, layout, front-end code, back-end code, and often a theme or plugin licensed from a third party. Each with its own author and its own ownership question. A single work-for-hire recital at the top of a development agreement does not resolve any of them.

Paying the invoice is not the same as owning the copyright

This is the point where most business owners push back. I paid for it. I have the source files. I have the Figma link and the repository access.

None of that transfers copyright. Under the Copyright Act, a transfer of copyright ownership is not valid unless it is in a signed writing. 17 U.S.C. § 204(a) (“A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”)

What you may get from payment and delivery is an implied non-exclusive license (i.e. permission to use the work). You cannot stop someone else from using the same design. You may not be able to register the copyright in your own name, assign it in an asset sale, or record a clean chain of title. The Ninth Circuit’s decision in Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990), is the classic illustration: the producer who commissioned and paid for special effects footage got an implied non-exclusive license to use it in his film, and nothing more, because there was no signed transfer.

The fix: a present assignment, not just a work-for-hire recital

The drafting solution is not to argue harder about whether your logo is a “compilation.” It is to make the work-for-hire clause the first of two layers, with an assignment underneath it that operates regardless of how the first layer comes out.

A basic backstop looks something like this:

Ownership. The Deliverables are works made for hire under 17 U.S.C. § 101, and Client is the author and owner of all copyright in them. To the extent any Deliverable does not qualify as a work made for hire, Contractor hereby assigns to Client, effective upon creation and without further consideration, all right, title, and interest in and to such Deliverable, including all copyrights and all rights of renewal, extension, and all causes of action for past, present, and future infringement.

The clearest formulation is a present assignment so typically, “Contractor hereby assigns.” Future-tense language such as “agrees to assign” or “shall assign” may be construed as only a promise to transfer later, depending on the agreement as a whole. No single word is legally mandatory, but the writing should unmistakably evidence a present transfer.

The good news is that § 204(a) is not a formality trap. The Ninth Circuit has said plainly that the writing “doesn’t have to be the Magna Charta; a one-line pro forma statement will do.” Effects Associates, 908 F.2d at 557. And “[n]o magic words must be included in a document to satisfy § 204(a).” Radio Television Española S.A. v. New World Entertainment, Ltd., 183 F.3d 922, 927 (9th Cir. 1999).

But read that second case as a warning as much as a permission. In Radio Television Española, the court applied the no-magic-words standard and still found the writings insufficient — faxes and internal deal memos that referenced a contract still “pending” did not evidence an intent to transfer. Informality is tolerated. Ambiguity is not. The court will look for a writing that actually shows the owner meant to convey the copyright, and a stack of emails after the fact is a poor substitute for one signed sentence at the outset.

Eight things to check before you sign

Define the deliverables precisely. “All work product” is an invitation to argue. List the files, formats, source materials, and working files, and say that source files and design files are included.
Use present-tense assignment language. “Hereby assigns,” not “agrees to assign.”
Set the effective moment. Assignment “effective upon creation” avoids a gap between creation and payment during which the contractor holds title.
Cover subcontractors and employees. Your contractor cannot assign what she does not own. Require her to obtain written assignments from every employee, subcontractor, and freelancer who touches the deliverables, and to deliver copies on request.
Include a waiver and license of moral rights Waivers, consents, and covenants not to assert moral rights, to the extent permitted by law. This matters for visual art and for international use.
Add a further-assurances clause. You will need the contractor’s signature later for copyright registration or recordation, and a cooperation obligation (ideally with a limited power of attorney) makes that possible after the relationship ends.
Carve out and disclose pre-existing and third-party materials. Stock assets, fonts, themes, plugins, and the contractor’s own reusable tools are not yours. Get them listed, and get a license broad enough for your actual use.
Do not stop at copyright. Trademark rights in a logo or name, patentable subject matter, and trade secrets need their own provisions. A copyright assignment does not convey trademark rights, and it does not clear your right to use the mark. That is a separate clearance question.

The California wrinkle: your work-for-hire clause may make you an employer

Here is the consequence almost no one anticipates, and it is the reason California businesses should not paste work-for-hire language into contracts reflexively.

California Labor Code § 3351.5(c) includes within the definition of “employee” any person “engaged by contract for the creation of a specially ordered or commissioned work of authorship in which the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire, as defined in Section 101 of Title 17 of the United States Code, and the ordering or commissioning party obtains ownership of all the rights comprised in the copyright in the work.” That places the author inside the workers’ compensation system.

Unemployment Insurance Code § 686 is more explicit about who is on the hook: where the same two conditions are met, “[t]he ordering or commissioning party shall be the employer of the author of the work for the purposes of this part.” Unemployment Insurance Code § 621(d) then pulls that person into the definition of “employee” by cross-reference.

Two features of these statutes deserve emphasis.

The trigger is conjunctive. It is not the recital alone. It requires both a signed writing designating the work a work made for hire and that the commissioning party obtain ownership of all rights comprised in the copyright. That is a real limitation, and it is one reason the drafting choices above matter.

Passing the ABC test is not a defense. Labor Code § 2775(b)(2) expressly preserves “any extensions of employer status or liability, that are expressly made by a provision of this code, the Unemployment Insurance Code,” or an applicable IWC order. So a contractor who satisfies all three prongs of the ABC test, a genuine independent contractor by any ordinary measure, can still be a statutory employee for these purposes because of what your contract says. EDD’s own guidance states the point directly: a worker who is not an employee under the ABC or Borello tests “may nevertheless be a statutory employee by law” for unemployment insurance, employment training tax, and state disability insurance purposes. EDD Information Sheet DE 231.

Depending on the facts, this classification can create workers’ compensation obligations and EDD registration, reporting, withholding, and remittance duties. UI and ETT are employer-paid; SDI is generally withheld from the employee’s wages. For 2026, California lists the SDI withholding rate at 1.3% with no taxable wage ceiling. Failure to classify, report, withhold, or remit correctly can produce assessments and penalties in addition to uninsured-employer exposure

There are structuring responses: the most familiar being to contract with a creator’s loan-out entity rather than the individual, or to lead with assignment language and use the work-for-hire recital more sparingly. How these provisions apply when the underlying work does not actually qualify under § 101, and whether contracting through a loan-out entity changes the analysis, may depend on the specific agreement and facts. Neither approach should be treated as an automatic safe harbor. Which approach fits depends on the deal, the deliverable, and how much you are paying. This is exactly the analysis to run before the agreement is signed, not after an EDD notice arrives.

The practical takeaway

Never let a work-made-for-hire clause stand alone. Pair it with a present assignment, define the deliverables, chase the subcontractor chain, and in California, think through the employment-law consequence of the recital before you include it.

Every one of these problems is cheap to prevent and expensive to fix. A contract review before signature is a fraction of the cost of a copyright ownership dispute, a re-brand, a broken deal, or an EDD assessment. And also considerably less painful than explaining to an acquirer that you cannot prove you own your own logo.

Talk to us before you sign

Tapley Law is a boutique intellectual property and business law firm. We review and negotiate the design, development, agency, and contractor agreements that determine who owns your brand.

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