As a media professional, graphic designer, photographer, filmmaker, etc., I’m often asked if I can develop a project on a work-for-hire basis. My answer is always “no.” Why? Let me explain:

What is Work-For-Hire?

First off, let me be clear: I am no lawyer. I can’t and won’t give legal advice. My understanding of work-for-hire (also called “work made for hire”) follows the guidelines of US Copyright law: the creator of a work holds the copyright of that work unless it is “made for hire.” If a work is “made for hire,” then the employer holds the copyright to it. You can refer to Circular 09 Work-Made-For-Hire Under the 1976 Copyright Act for more information on this matter. Circular 9 is a valuable resource.

This is usually the farthest a client gets. It makes sense, it’s clear, its concise, but there’s more to it than that.

Calling it Work For Hire Doesn’t Make it Work for Hire

Most clients simply want me to put “Work for Hire” somewhere on the contract. The idea is they want to retain exclusive copyright to the work. That’s the idea, anyway. In reality, calling something “work made for hire” doesn’t make it “work for hire.” Also, as the creator of the work, I retain the copyright to the work or works in question. I’m happy to provide a license to the work, but I do not give up copyright without adequate compensation or consideration.

Now, we get to the next part of the argument: I try to be gentle with this, but people don’t understand copyright law that well and usually think it is the artist who doesn’t understand. It is a complicated part of US law, too, so I completely understand the confusion, but I have a good understanding of my intellectual property rights under US law:

Definition of Work for Hire under US Copyright Law:

A work for hire agreement applies if the client specifically hired or commissioned the work or if the work was commissioned by the client for a collective work, a film/video, a translation, a supplementary work (to another author’s work, such as a foreword, chart, or table), a compilation, instructional text, test, or atlas or the contract with the client explicitly states that your work is a “work made for hire.”

It all sounds very simple, but there’s another layer to it and I’m skipping over loads of “yeah, buts…” Basically, if a client holds the copyright, I lose all rights to it. That includes use of the work for promotional purposes and limitations to where the work can (or cannot) be used. Why is that important? If I can’t claim I created the work, I can’t include it in a portfolio. Also, if the client retains all rights, I have no control over what is done with the artwork after I’m done with it. For example, if the client wants me to make something for them for, say, a brochure, I have no control if the work is later used in a video, website, etc.

What to do instead?

In some cases, the client may need the rights to the work. A good example is for trademarking. In this case and in most cases, I license and/or assign specific, exclusive rights to the client for a specific use, set specific fees and guidelines for its use, provide rights for a specific time frame, assign all rights for higher compensation, etc. In all cases, I will retain ownership of the copyright.

The client won’t budge, it must be work for hire, now what?

Two options: 1) Charge more for the work to compensate me for any and all future use of the work (often many times more than the original quote) and 2) thank the client for their time, apologize to them, and calmly, politely, refuse their business.

Nobody wants to turn business away, but if the client won’t budge and I won’t budge, then there can be no arrangement or business and it’s better to part ways amicably rather than argue or fight. I hate burning bridges and most clients will respect your rights. I’ve even had people come back and agree to the terms for the original quote.

Why?

We are no longer in the Industrial Age. We are in the Information Age (also: Electronic Age, Computer Age, Digital Age, et al.). This means our economies are driven more by information than by physical “things.” In the industrial age, you could obtain a specific piece of equipment and use that equipment to produce products or services in exchange for money. The knowledge of how to operate the equipment and obtain supplies and materials was limited by geography, prior knowledge, known business practices, and keepers of knowledge such as unions and guilds.

In the current age, the information itself has value while the physical equipment does not. Now, intellectual property is more valuable. Intellectual property includes concepts like trade practices (the unique practices a business uses to gain a competitive edge), copyrights, patents, and trademarks. There will be others as time and technology leap forward, I’m sure.

Understand: the equipment still has value, but the equipment can be duplicated easily since the technology has improved to the point that we can simply make the parts used to make the machines. The machines can even self-replicate. If you have the plans for a machine, you can sell the rights to these plans versus selling the machine itself. “Things” are not as valuable as the plans to build the things. We have the technology now to make 3D printers and CAD/CAM machines (and others) which can be used to create an item from plans (rather than from only one manufacturer). Furthermore, most of the stops to obtaining the information for making something are well within the public realm via the Internet.

I deal primarily with copyrights. Copyright law allows the creator exclusive rights to a work for the life of the author and for some time after that (in the US anyway). Giving up those rights is not a good option for my business. I know this may seem a little harsh, but I need to respect my own business and that of my clients. I can’t do that by giving away my best source of income: intellectual property.

Sources:

AIGA: Legalities 4: What is Work Made For Hire? – http://aigasf.org/community/legalities/legalities_4_what_is_work_made_for_hire
US Copyright Office: Circular 9: Works Made for Hire Under the 1976 Copyright Act – http://www.copyright.gov/circs/circ09.pdf

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