Is it Work for Hire? Or Not?

If I create something while I'm working for a company, is it my property or the company's? Good question. As usual, it depends. I heard recently of someone who created a new recipe while working as a chef employed by a food service company. He said he owned the recipe, because he created it on his own; the company didn't specifically tell him to create that recipe. The company said the recipe belonged to them. Who is right?

The concept of work for hire under the U.S. Copyright Act of 1976 includes the following definition:

(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

Certainly, if an employer specifically asks the employee to create something, like a book or educational material or a recipe, that work is "for hire." But what if the employee creates something on his own while he's working? Is that "for hire?" Does the company have the right to it? It appears, from what I've read, that as long as the work is created "within the scope of ...employment," it belongs to the employer. In the case above, the employee was hired to create recipes. So any recipes he creates belong to the company. The best way to avoid legal hassles in cases like these is to have a specific written contract for employees who do creative work so it is clear who owns their work.

What do you think? Should the chef's recipes be his property or the company's? What if he leaves? Does he get to take the recipes with him? I have created a new folder in the forum for this question and I would like to know what you are thinking about this issue.

I am not an attorney and I am not giving a legal opinion here. My purpose in creating this post is to present the issue.