Work-for-Hire for Game Studios: Why Your Contractor Might Still Own Your Art

You paid a freelance artist $4,000. They delivered the character art. You shipped the game.

You might not own that art.

Under US copyright law, the person who creates a thing owns it from the moment they make it. Payment transfers nothing on its own. An independent contractor who is not your employee keeps the copyright no matter how much you pay them.

This is where a work for hire agreement is supposed to save you. For a contractor, it often doesn’t.

A “work for hire” label only transfers a contractor’s copyright if the deliverable is one of nine narrow categories in the statute. Standalone code and most individual art assets are not on the list.

I’ll show you exactly how ownership works for game studios, the one clause that actually fixes it, and why getting it wrong can cost you the franchise 35 years from now.

This is general education about US law, not legal advice for your specific deal.

Quick facts: work for hire for game studios

• Default owner: the creator, from the moment of creation. Payment alone transfers zero copyright.
• Contractor work for hire needs two things: the deliverable fits 1 of 9 statutory categories AND a written instrument signed before work starts (17 U.S.C. 101).
• Source code is not on the list. Software is a “literary work,” so a contractor’s standalone code is almost never a work made for hire, even with the label.
• Video games qualify as “audiovisual works.” Art, music, and animation integrated into the game can be work for hire under category 2.
• Music is already done this way: 97% of large-budget titles and roughly three-quarters of smaller games get their music under work for hire (GameSoundCon).
• Assignment has a 35-year fuse. Under 17 U.S.C. 203, an author can terminate an assignment 35 years out. True work for hire is immune.
• Horror Inc. v. Miller (2d Cir. 2021): a contractor reclaimed the Friday the 13th screenplay, and the studio paid $886,564.88 in fees.

Key definitions

Work made for hire: A work the law treats as authored by the hiring party, so you own it from creation with no termination right. A W-2 employee’s in-scope work qualifies automatically; a contractor’s work only qualifies if it fits the statute.

The nine categories: The nine deliverable types in 17 U.S.C. 101 that a contractor’s commissioned work must fit to be work for hire. A composer’s score integrated into your game can fit (audiovisual work). A programmer’s engine code cannot.

Copyright assignment: A present-tense transfer of copyright from the contractor to you. Works for any deliverable including source code, but the contractor keeps a 35-year clawback right.

VARA / moral rights: Rights of attribution and integrity that visual artists keep under 17 U.S.C. 106A even after you own the copyright. A board game sculptor can object to you mutilating their work unless they waived it in writing.

Termination right: The author’s power under 17 U.S.C. 203 to undo an assignment 35 years later. It cannot be waived in advance, and it does not apply to true works made for hire.

The default rule, and the only two ways a studio actually gets ownership

Copyright is automatic, and it goes to the human who made the thing, not the person who paid for it. Studios do not automatically own contractor work, even after full payment, unless a specific agreement transfers those rights.

So a studio gets ownership through exactly two paths. Knowing which one you’re on is the whole game.

Path one: employee, in scope. If the creator is your actual W-2 employee making the work as part of their job, it’s a work made for hire automatically. You’re the author. Done. (That’s prong A of 17 U.S.C. 101.) But “employee” is a legal test, not a vibe. Most freelancers fail it, and I’ll show you that test later.

Path two: contractor plus a signed agreement that fits the nine categories. This is prong B. Two conditions, both required: the deliverable fits one of nine enumerated categories AND there’s a written instrument signed by both parties.

That signature has to happen before the work starts. In Estate of Kauffmann v. Rochester Institute of Technology (2d Cir. 2019), a 2004 agreement calling 1999 articles “works made for hire” was invalid because it came years too late.

A verbal deal, an email thread, or a note on the final invoice gets you a revocable license at most.

Your Unity programmer and your board game card illustrator both usually sit on path two, and path two is where studios faceplant. So the whole question is: are you on path one or path two, and if path two, did your contract actually do its job?

The nine-category trap: why your contractor’s code and art often slip through

Here’s the part nearly every other article I’ve seen on this topic gets wrong.

For an independent contractor, “work for hire” in your contract is legally meaningless unless the deliverable is one of exactly nine things on a list in the statute.

Here are all nine, verbatim from 17 U.S.C. 101. A contractor’s commissioned work can be work for hire only if it’s specially ordered or commissioned as:

1. a contribution to a collective work
2. a part of a motion picture or other audiovisual work
3. a translation
4. a supplementary work
5. a compilation
6. an instructional text
7. a test
8. answer material for a test
9. an atlas

Look at that list. Notice what is not on it.

What fits: art and music inside the game

Video games qualify as “audiovisual works,” which is category 2. So a contractor’s art, animation, music, or sound integrated into the game can qualify, as long as the signed agreement is in place. This is why 97% of large-budget titles and nearly three-quarters of smaller games handle music as work for hire. The category was practically built for it.

You can also argue a multi-contributor game is a “collective work” and each contribution fits category 1. Be careful. That theory is contested, and courts have not uniformly bought it for video games.

What does not fit: source code and standalone art

Standalone source code is the big one. Software is a “literary work,” and literary works are nowhere on the nine-item list. So your programmer contractor’s engine and gameplay code is not a work made for hire no matter what the contract says. Pay a contractor to build your custom engine, stamp “work for hire” on the deal, take delivery, and you still do not own that code. The programmer does. One firm calls contractor software a “trap for the unwary.”

A single illustration or sculpt delivered on its own is the other trap. People reach for “supplementary work,” but the definition requires a secondary adjunct to another author’s pre-existing work, like forewords or maps illustrating someone else’s text. A board game illustrator’s primary card art or a standalone character sculpt is the main event, not a secondary adjunct. It likely does not qualify, so the label does nothing.

The soundtrack playing under your game might be a clean work for hire. The engine code running the whole thing is not. For more on where outsourced assets go sideways, see the hidden risks of outsourcing development.

Stamping “work for hire” on a code or standalone-art contract does not make it so. Which is exactly why you need the next thing.

Note: A lot of this is based on a reading of the statute and other research on these work for hire categories. Courts have not done much work in the realm of video game and board game work for hire, so we don’t have any specific decisions that I know of to give a sure answer. The facts on the ground could always vary!

The fix: the one clause that actually transfers ownership

The fix is basically one paragraph, and it closes every gap I just described. You don’t need to memorize the nine categories if your contract has five components a non-lawyer can sanity-check.

1. Work for hire designation. “To the extent it qualifies, this is a work made for hire with the studio as author.” This grabs the audiovisual art and music and kills the 35-year termination right on those pieces.

2. Present-tense IP assignment, the backstop. “To the extent it does NOT qualify as a work for hire, contractor hereby assigns all rights to the studio.” This is the hero of the section.

Watch the verb. “Hereby assigns” transfers the rights now. “Agrees to assign” is only a promise to do it later, which is weaker. The present-tense assignment is what catches the source code and the standalone art the nine-category trap missed.

Believe it or not, failing to add that “hereby” could actually cost you the work. There is case law backing this one up.

3. Further assurances. The contractor agrees to sign whatever extra paperwork you need later, like registrations and confirmatory assignments. This one matters most during an acquisition or publishing diligence.

4. Moral rights / VARA waiver. An illustrator or sculptor retains moral rights, attribution and the right to stop you mutilating their work by default, even after you own the copyright. You want a written waiver of these moral rights in your agreement.

5. Originality and non-infringement warranty. The contractor promises the work is their own, doesn’t infringe anyone, hasn’t already been sold elsewhere, and is free of liens. A promise that they haven’t used generative AI is also super useful in this regard, as well (you typically can’t own copyright in AI-generated materials).

Plus the timing rule studios keep breaking: sign it before work starts. A “work for hire” note on the final invoice is worthless for work for hire status (the Kauffmann lesson again).

One California note. Some CA studios drop the work for hire words and go assignment-only, because that language there can trigger workers’-comp and misclassification exposure. More on that two sections down.

This clause is standard and reusable. If your agreement uses only a work for hire clause, add the assignment backstop today. It’s the cheapest insurance in your pipeline, and the heart of the contracts every game developer needs.

Why this matters in 35 years: the reversion trap that can take your franchise back

Even a perfect assignment has an expiration date you can’t contract around. 35 years out, the contractor (or their heirs) can take the rights back, and almost nobody plans for it.

The mechanic: Section 203 termination

17 U.S.C. 203 lets an author terminate any grant, assignment or license, in a five-year window that opens 35 years after the grant. They serve written notice two to ten years ahead, and no contract clause can waive it.

But termination does not apply to true works made for hire. So work for hire is permanent, and an assignment is a 35-year fuse. That’s the real reason the work for hire prong in the fix clause matters, not just the assignment prong.

Horror Inc. v. Miller: a contractor took back Friday the 13th

Victor Miller wrote the Friday the 13th screenplay in 1979 for $9,000 as an independent contractor.

37 years later he served a Section 203 termination notice, and his side reclaimed the screenplay copyright (Horror Inc. v. Miller, 2d Cir. 2021). The studio also paid $886,564.88 in attorneys’ fees after the court found its counterclaims were meant to intimidate Miller out of his rights.

Run the parallel. A contractor who scored, coded, or scripted a now-valuable franchise for $5,000 to $50,000 in the late ’80s or ’90s can serve notice right around now, 2024 to 2030.

Markham Concepts v. Hasbro: board games are in this fight too

The Game of Life cuts the other way. In Markham Concepts v. Hasbro (1st Cir. 2021), the court found the 1960 game was a work made for hire under the old 1909 “instance and expense” test, so the designer’s heirs had no termination right.

Two lessons. Board game content is squarely in this fight, not just video games. And work for hire status is fact-specific and depends on the law at the time of creation, so there’s no automatic “games are work for hire” rule. Heirs are pulling this lever now; the Top Gun case (Yonay v. Paramount, 2026) is the same machinery elsewhere in entertainment.

True work for hire on what qualifies, an assignment backstop on everything else, both signed up front. That combo is the only thing that’s both complete and reversion-proof where it counts.

Employee or contractor? The test that decides it for you

Why does “employee vs contractor” decide who owns the art? Because if your creator is a real employee working in scope, you own the work automatically. No nine-category trap, no termination clock. So which one is your remote freelancer?

The Reid test for copyright

Copyright uses a common-law agency test from Community for Creative Non-Violence v. Reid (US Supreme Court 1989, the sculptor case). Not a labor-law test, and union membership doesn’t override it. The factors that matter most for game work:

• Tools: their own PC, Maxon, Adobe, Unity, or DAW points to contractor
• Location: working from their own home points to contractor
• Payment: per project or milestone, 1099 not W-2, points to contractor
• Benefits: “no benefits” points to contractor
• Duration and task control: a defined deliverable points to contractor; open-ended work you direct points to employee

A typical remote freelance artist or composer hits basically every contractor factor. So almost every freelancer you hire is a contractor for copyright, path one does not save you, and you must have the fix clause.

This is also why your contract terms when hiring a gamedev contractor matter so much.

The embedded edge case: JustMed v. Byce

It can flip. In JustMed, Inc. v. Byce (9th Cir. 2010), a developer working remotely with no formal employment contract was still found to be an employee, so his code was work for hire owned by the company. He replaced an employee, worked on ongoing operations rather than one defined deliverable, and was integral to the business.

The lesson cuts both ways. A long-term embedded “contractor” might actually be an employee, so you may own more than you thought, but you also drag in wage-and-hour exposure.

A co-founder hacking on the game with no paperwork is its own gray zone. Get a signed agreement in every case, anyway.

Two different tests, don’t conflate them

Here’s the point no competitor makes. The Reid test answers the copyright question, who’s the author and who owns the IP. It’s a federal common-law agency test, and federal copyright law preempts state law on authorship.

A second, separate question runs under state labor law: wages, overtime, unemployment, workers’ comp, benefits. A growing number of states answer that one with a much stricter “ABC test.” It presumes the worker is an employee unless the business proves all three: (A) free from the company’s control, (B) doing work outside the company’s usual business or off its premises, and (C) independently established in that trade. Fail one prong and they’re an employee for labor purposes.

California codified this in AB5 (2019, from the Dynamex decision), with AB-2257 carve-outs for some creative roles like graphic designers and fine artists. New Jersey uses an ABC test too and finalized strict formal rules effective October 1, 2026; Massachusetts has one of the strictest.

The two tests can disagree. A freelance artist can be a contractor for copyright (so you don’t own the art without your assignment clause) AND an employee under California’s ABC test if you direct their work closely enough (so you owe back wages, payroll tax, and workers’ comp). The assignment backstop protects your ownership no matter how either test comes out.

So: a true W-2 employee on the clock, you’re probably fine on ownership. Everyone else, the freelancers and per-gig artists and contract coders, assume contractor for copyright and get the clause. And in California, New Jersey, or Massachusetts, run the separate labor-law check so a “work for hire” setup doesn’t hand you a misclassification bill.

DIY or hire it out: what a sound game contractor clause actually needs

You don’t need a lawyer for every $500 art commission. You need to know which deals you can paper yourself and which ones can sink you.

A sound clause hits this spec: work for hire designation, present-tense assignment backstop, further assurances, VARA waiver, originality warranty, signed before work starts, and “work product” defined broadly to include drafts and works in progress. That’s the checklist from the fix section above.

The DIY path: routine, low-stakes deals. A standard solo freelancer, a defined deliverable, a modest budget, nothing franchise-defining yet. A solid reusable contractor template with the clause above is usually enough. This is the Speedrun Legal lane. The contract generator (included in the $297 course) produces exactly this clause, so you stop reinventing it every time you hire someone.

The hire-a-lawyer path: complex, high-stakes deals. Multiple contributors with tangled rights, a valuable or franchise-level IP, real money on the line, a publishing or acquisition deal in diligence, a contractor already disputing rights, or foreign contractors with cross-border questions. For those, book a consult with the firm.

The “already paid, no contract” fix. You can still get a present-tense retroactive assignment now. Pay nominal consideration, and have it cover all work from the start of the engagement. Hard caveat: it can never create work for hire status, so the 203 clock is already ticking, and you need the contractor’s cooperation. Fix it before a deal, not during diligence when your leverage is gone. Making sure you own your game content is a lot cheaper before the work than after.

This is general education about US law, not legal advice for your specific situation.

The underlying concept never changes: own the work on paper, before the work, every time.

Work for hire and game contractors: frequently asked questions

I paid a contractor to make art, code, or music for my game. Don’t I own it?

No, not automatically. Under US copyright law the creator owns the work the moment they make it, and payment by itself transfers nothing. An independent contractor keeps the copyright unless a written agreement actually moves the rights to you. That’s why your contracts need a real assignment clause, not just a “work for hire” label.

Does my contractor’s work count as work for hire just because the contract says so?

Only if the deliverable fits one of the nine statutory categories in 17 U.S.C. 101. Source code is a literary work and a standalone illustration usually isn’t a “supplementary work,” so neither one qualifies on the label alone. Art and music integrated into the game can qualify as part of an audiovisual work. The label is meaningless without an assignment backstop.

Can I sign the work for hire agreement after the contractor delivers?

Not for work for hire purposes. The written agreement has to be signed before the work is created, which is what the court held in Estate of Kauffmann v. RIT (2d Cir. 2019). You can still get a retroactive copyright assignment after delivery, and that fixes ownership, but it won’t create work for hire status or kill the 35-year termination clock.

What’s the difference between a work for hire clause and a copyright assignment?

Work for hire makes you the author from the moment of creation, with no termination right ever. An assignment transfers the rights, but the contractor stays the “author” and keeps a 35-year clawback under Section 203. Use both: the work for hire clause locks down qualifying deliverables permanently, and the assignment catches everything else, including source code.

Can a contractor reclaim game assets they made decades ago?

Yes, if they were an independent contractor who assigned the rights rather than creating a true work for hire. Section 203 lets them terminate the grant during a five-year window starting 35 years after it was signed. Victor Miller did exactly this with the Friday the 13th screenplay in Horror Inc. v. Miller, reclaiming it 37 years later. A 1989 franchise built on contractor assignments can face reversion around 2024 to 2030.

What moral rights do illustrators and sculptors have that my contract needs to handle?

Under VARA (17 U.S.C. 106A), visual artists keep the right of attribution and the right of integrity even after you own the copyright. These rights can only be waived in writing, and the waiver has to identify the specific works. Board game publishers hiring illustrators or sculptors should include a VARA waiver alongside the copyright assignment so they can modify or reprint the work freely.