While copyright ownership “vests initially in the author or authors of the work,” the Copyright Act carved out an exception for “works made for hire.” The Copyright Act of 1909 created an “almost irrebuttable presumption that any person who paid another to create a copyrightable work was the statutory ‘author’ under the ‘work for hire’ doctrine.” Appellate courts have been divided over whether third parties, meaning a party that is not a potential owner of the copyright, should be allowed to raise the work for hire doctrine as a defense to copyright infringement. In the Second Circuit’s most recent struggle with this issue, Urbont v. Sony Music Entertainment, the majority concluded that a third party could assert the work for hire provision as a defense to copyright infringement claims. However, this Note argues that the Second Circuit’s analysis was flawed because infringing third parties should not be able to escape liability through the work for hire doctrine.
Elizabeth Vinson, Copyright Ownership—Even Iron Man Couldn’t Protect the Work for Hire Doctrine from Third-Party Infringers, 70 SMU L. Rev. 221 (2017)