Is it work-for-hire if the hirer doesn&#39;t own copyright on collective work?
<p>Per <a href="https://en.wikipedia.org/wiki/Work_for_hire#Law_in_the_United_States" rel="nofollow noreferrer">https://en.wikipedia.org/wiki/Work_for_hire#Law_in_the_United_States</a>, work done by an an <em>independent contractor</em> may qualify under <em>work-for-hire</em> if it's <em>a contribution to a collective work</em>.</p>

<p>But what if the hirer doesn't actually own the copyright to the collective work?!  E.g., if it's a FL/OSS project that the contractor was hired to modify and extend, and the copyright on the existing collective work is owned by a third party?</p>

<p>Does this nuance at all alter the determination on whether or not a given work would qualify as work-for-hire when commissioned by a party that has no reasonable existing copyright stake on the collective work in question?</p>

<p>If the derivative work is made <strong>without</strong> the permission of the copyright holder or not under fair use/dealing (i.e. it is an infringing work) then the original owner is legally the owner of the derivative work.</p>

<p>If the derivative work is made <strong>with</strong> the permission of the copyright holder (including the terms of any licence) or under fair use/dealing (i.e. it is <strong>not</strong> an infringing work) then the author is the owner of the copyright. If the author is subject to the 'work-for-hire' rule then the employer of the author of the is the copyright holder. </p>

copyright intellectual-property derivative-work copyright-transfer work-for-hire