What's the difference between an NDA and a Work made for hire agreement?
  • NDA are usually used to protect the secrecy of data that you need to share in furtherance of a potential relationship.
  • Work made for hire agreements are used to hire the services of a contractor and obtain the rights in the work created as a result of such hiring.

Non Disclosure Agreements, will usually cover the pre-stages of hiring a contractor.

You might need to disclose confidential information or templates to a potential contract (to enable him/her to establish and send you a customized quote for instance).

Work made for hire agreements cover the actual hiring of the contractor once you've decided to retain his/her/its services. They ensure a proper transfer of the work product together with related IP rights to the hirer.

These two type of legal documents should be dissociated, as their bundling may create confusion as to what is covered by the work made for hire agreement.

Although good NDAs generally do contain a provision that says all work that may be performed based on any document or information disclosed under the NDA will be performed under the work made for hire doctrine, NDAs do not provide for milestones, IP assignments or warranties on work product.

In addition, like any other contract, the contract for the provision of services and related IP transfer must bear consideration, meaning the  there has to be a counterpart to the IP transfer for the contract to be valid, and for the work to be considered a work made fore hire under US Copyright laws.

The IP Assignment clause contained in a Work Made for Hire Agreement will cover every thing that was done in furtherance of the work product.