In the USA, copyright law may only be established with respect to the Copyright Clause of the Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Working for hire is an established and well-accepted practice currently described by the 1976 Copyright Act. However, work-for-hire contracts are commonly used to disenfranchise artists by mandating a reassignment of copyright from employed artists to employers, particularly long-lived corporations. Such reassignments are not necessarily in accord with the Copyright Clause, which only allows for copyrights which "promote the progress of science and useful arts" rather than seeking rent, and also only allows for copyrights to be secured "to authors and inventors" rather than employers.

Has the constitutionality of working for hire been explored? I'm looking for judicial opinions and case law. State-specific answers are welcome.

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    I don't think that laws are usually assessed by whether or not they further a particular purpose, even if that purpose is cited in the Constitution. Certainly, courts do not read the 2nd Amendment that way, even though it too has an explicit purpose, namely "a well regulated Militia." If we did try to assess copyright law based on whether or not it furthers the purpose of "promot[ing] the Progress of Science and useful Arts," we would almost certainly conclude that the term of copyright is so long as to actually interfere with that purpose.
    – A. R.
    Jan 17 at 19:42
  • I wonder why they'd need to. Why can't a business create or invent something? If 500 people get together to film a movie, the movie was created by the whole group of 500.
    – user253751
    Jan 17 at 19:59
  • The question has not even been asked in the courts. The historical starting point before 1976 (or 1909) was that employee product was as a matter of common law the property of the employer. This got statutorily (and vaguely) encoded in 1909, and narrowed in 1976 so that employers do not own all works. Your question is ambiguous: maybe you mean "does the work for hire section unconstitutionally burden the employers rights", or maybe "does the work for hire section unconstitutionally burden the employees rights".
    – user6726
    Jan 17 at 22:20
  • @user253751: But note that a collection of people is not a corporation; the problematic behaviors around copyright start with the alienation of artists from their artistic outputs. Contrast a film studio's productions with reanimations for a vivid example.
    – Corbin
    Jan 18 at 16:24
  • @Corbin A corporation is exactly a collection of people, or at least, that may have been the original intention of the law defining companies. Back then, people would actually pool their money for some kind of collective effort, like a ship expedition, and that expedition was a company, and people got to share the earnings based on how much they put in, which was the shares in the company.
    – user253751
    Jan 19 at 9:01

1 Answer 1


State-specific answers are welcome.

Copyright is exclusively a matter of federal law*, and it in the exclusive jurisdiction of the federal courts. See 28 U.S.C. § 1338(a) ("The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to... copyrights .... Such jurisdiction shall be exclusive of the courts of the states in ... copyright cases.").

There are no state specific answers.

Has the constitutionality of working for hire been explored? I'm looking for judicial opinions and case law.

There is no reasonable doubt that the work for hire doctrine is constitutional.

The "work for hire" doctrine arises from 17 U.S.C. § 201(b), which states:

Works Made for Hire.--In the case of 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, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Congress has broad discretion to decide who an "author" or "inventor" is under the clause of Article I, Section 8 of the United States Constitution cited in the question. As the U.S. Supreme Court explained in 2020 case:

“[I]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212, 123 S.Ct. 769, 154 L.Ed.2d 683 (2003).

Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1511 (2020).

The annotations of court decisions interpreting that statute and interpreting the relevant clause of Article I, Section 8 of the U.S. Constitution, indicate that not a single case has ever even questioned the constitutionality of this part of the copyright statute, which was enacted in 1976 and took effect in 1978.

Also, contrary to the assumption made in the question, copyright laws that purely promote and protect rent seeking are constitutionally permitted. The U.S. Supreme Court resolved this question in the case of Eldred v. Ashcroft, 537 U.S. 186 (2003), holding that an extension of the term of copyrights still in force, even after the owners of those copyrights were dead, pursuant to the Sonny Bono Copyright Term Extension Act of 1998, was constitutional. See also Golan v. Holder, 565 U.S. 302, 318 (2012) ("The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain.")  

  • There is one narrow exception to this exclusivity of federal law as of the effective date of the Copyright Act of 1976 in 1978:

With the 1971, 1976 and subsequent congressional amendments to the federal Copyright Act, New York common-law protection of sound recordings has been abrogated, but only in two respects. First, the common law does not apply to any sound recording fixed, within the meaning of the federal act, after February 15, 1972, because recordings made after that date are eligible for federal statutory copyright protection. Second, state common-law copyright protection is no longer perpetual for sound recordings not covered by the federal act (those fixed before February 15, 1972), because the federal act mandates that any state common-law rights will cease on February 15, 2067. The musical recordings at issue in this case, created before February 15, 1972, are therefore entitled to copyright protection under New York common law until the effective date of federal preemption — February 15, 2067.

Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540 (2005) (interpreting the same treaty as Golan v. Holder, 565 U.S. 302 (2012), in the context of state law protections for pre-1972 sound recordings).

Hat tip to @bdb484 in the comments.

  • There are no state specific answers after 1787 - Connecticut had a 1783 copyright law, and there is an essay on such laws. However, the power of federal on all copyright is in Article I, Section 8, Clause 8 of the constitution.
    – Trish
    Jan 17 at 21:43
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    @Trish Given that the question is asking about the constitutionality of a law enacted in 1976, I think it is fair to say that this issue wasn't a factor. Also, FWIW, the U.S. Constitution took effect in 1789, and state copyright law wasn't fully pre-empted by federal law until 1978 when the Copyright Act of 1976 took effect.
    – ohwilleke
    Jan 17 at 21:48
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    I think this answer is correct, but I'd quibble with the opening assertion that copyright is exclusively a matter of federal law. There remain narrow areas where common-law copyright protections continue to exist, such as pre-1972 sound recordings. Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540 (2005).
    – bdb484
    Jan 17 at 22:09
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    @ohwilleke And I could be wrong, but I think this means that the states could still today extend additional copyright protection above and beyond what the Copyright Act allows. If AI-generated text and images aren't covered, perhaps they could be under some (yet to be enacted) state law?
    – bdb484
    Jan 18 at 2:29
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    @ohwilleke I'm not convinced either. My thinking is that as long as the feds are only saying "this isn't protected by the Copyright Act" (as opposed to "this is in the public domain"), I don't see a strong pre-emption argument. I don't know why that would be wrong, but this isn't my area of expertise.
    – bdb484
    Jan 18 at 17:09

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