Jon Garon (of Hamline Law School) and Elaine Ziff (of Skadden Arps) have written The Work-Made-for-Hire Doctrine Revisited: Startup and Technology Employees and the Use of Contracts in a Hiring Relationship. Their point:
Often, a copyrighted work is not created by one or even two authors but, instead, by a multitude of authors. Corporate brochures include text drafted by copywriters working in conjunction with other staff members, graphic designers, photographers and others. Most business works are created as a work made for hire, which vests the copyright in the employer rather than the employee. In most situations, the employment relationship will depend on an existing common law agency relationship between the parties. If an employer-employee relationship cannot be established, then the work for hire doctrine may still have a role for those works that fall into enumerated categories, as long as a proper written agreement is executed by both parties. With the advent of high-tech start-ups, virtual companies, and recent economic tensions, the courts have been rethinking the traditional rules developed by the Supreme Court in Committee for Creative Non-Violence v. Reid. Under these high-profile decisions, the common law rules of agency have been reconsidered and business owners need to adjust their practices to respond to this new reality.