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September 2007

September 2007 -- Pirates

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  • Work for Hire
    by Ellen Million

    It sounds innocuous, but the term 'Work For Hire' is one that every artist should know backwards and forwards before they sign any contract.

    What is Work For Hire?

    The easiest and most straightforward kind of Work For Hire is just that - being hired for work. You have an employer, and they employ you, most commonly in exchange for money. They probably give you a desk, and a health plan, and a timecard to punch. Everything you do while acting as an employee belongs to your employer. They tell you to draw a coconut, you draw them a coconut, and it becomes THEIR drawing of a coconut. They can do anything they want with that coconut, and they don't need to credit you, ask you for permission, or even say "thank you". The employer is even considered the author of the work.

    More often than not, a company isn't large enough to hire a full-time (or even part-time) artist to sit around and draw coconuts all day. They need a drawing of a coconut only once in a blue moon, and when that comes up, rather than hiring someone to come and sit at a desk and be employed, they contract someone to draw their coconut.

    As a freelance artist, you would be an independent contractor. The company would hand you a seventeen page contract, which would generally say something to the effect of "This is a Work for Hire contract." Work for Hire is a very specific kind of contract. Any old contract, no matter how much the content resembles the terms of a Work for Hire contract, is NOT a Work for Hire contract unless it specifically says so, and the work being hired is for the kinds of publication that fall into Work for Hire jurisdiction. These publications include multi-author works, illustrated publications or games, calendar plates, et cetera. Manuals that include technical illustrations may also fall in this category, as well as just about any kind of publication where you are one contributor to a multi-brain end result.

    With a Work for Hire contract, you are compensated for creating art to the customer's specifications, for said customer. Just as it would if you were an employee, the resulting work becomes entirely theirs. They don't have to credit you (and can, in fact, credit themselves), ask you for permission to use the artwork in an unexpected way, or compensate you further if they decide to use the artwork for merchandise, et cetera -- UNLESS there is some provision to the contrary in the contract.

    How is A Work for Hire Contract Different from a Usual Contract?

    With all contracts other than Work for Hire, any rights that are not specified in the contract fall to the creator. Unless the contract specifically states otherwise, the artist is the "author," and is recognized as the creator of the work. The person who hired you cannot take automatic credit for your work.

    With a Work for Hire, the opposite is true: by default, the person who hired you CAN take credit for your work and CAN claim all copyrights if not otherwise specified.

    When the product of a Work for Hire is registered for copyright, the person who hired the work--not the person who actually drew it!--is considered the author; there is even a checkbox for "work-made-for-hire" in copyright registration forms. This is because Work for Hire work is considered the creative property of the employer or contractor.

    As with all contracts, the meat of the matter is in the details. A Work for Hire contract that specifically allows the artist to retain particular copyrights and allows for crediting his work and pays a comfortable amount can easily be better than a contract that is not by law a Work for Hire but still has terms that strip away copyright and credit.

    When Are You an Employee?

    This can be a tricky definition, since there are no legal standards laid out to differentiate an employee from an independent contractor, in any concrete manner. There are, however, a number of legal precedents that can be examined.

    Three major factors are considered in making the decision to classify someone as an employee. First, how much control does an employer have over the final product? If you have a boss hanging around over your shoulder pointing out where to put the coconut hairs and you're using his company computer at his company location to create the product, he may claim employment of you unless you have a contract that states otherwise.

    The second factor is control over the artist in question. If the employer is able to tell you what hours to work, has the ability to change your schedule to have you work on undiscussed new projects, without a new contract, and can hire you assistants or subcontractors without consulting you, he may claim employment of you.

    The third factor revolves around 'status and conduct' of the employer. For example, if he is treating you as an employee, withholding your taxes, providing health insurance or benefits, he may claim employment of you.

    What does it mean to be an employee? All of the work that you do for your employer is considered to be Work for Hire. You may receive no credit for authorship, and you will, by default, retain none of the copyrights to the work you created. You usually get a better health plan than a freelance artist does.

    The Fine Print

    Not all Work for Hire contracts will be so strict as to allow no credit and no control. These would be hideously unpopular contracts, and very few artists with options would accept them. In the contract itself, there are plenty of opportunities to fine tune the details.

    The nitty-gritty bits of a contract will lay out all kinds of details about who gets paid, how much, and when, and whether the pay is hourly, a lump sum, royalties, or some combination thereof. It will also state any requirements by either party for credit or print rights. It should also include deadlines for both parties, and any penalties that might be incurred for not meeting them. Only specifics that are not touched on in the contract will default to the strict meaning of the general Work for Hire terms.

    A kill fee is a common enough staple in Work for Hire contracts that it deserves a mention. This item is for cases when, despite good intentions on both sides, a project does not go through, but a part or the whole of the work has been completed. The contracted party deserves partial compensation, and will receive it through a specified 'kill fee,' often a low percentage of the original amount agreed upon.

    For more details about contract terms, please see this article.

    Other Common Questions

    Can a contract be Work for Hire if they pay nothing in advance?
    Sure. Just about any contract can be a Work for Hire contract, as long as it says specifically that it is. Payment details should be spelled out in any contract that you sign.

    Should Work for Hire be avoided at all possible costs?
    Not necessarily, but do read the contract carefully. If the pay is worth the complete release of copyrights, or if the contract allows some key rights to be retained, then by all means, these can be lucrative, worthwhile contracts to enter into.

    Does signing a Work for Hire contract mean I've sold my soul?
    No. They do not own any spiritual or non-corporeal part of you. They don't even own any body parts. Moreover, they do not own any of the body of your work, other than that done under their contract.

    Where can I find out more about Work for Hire?
    http://www.copyright.gov is a fine place to start. I would also recommend "Graphic Artists Guild Handbook of Pricing and Ethical Guidelines," an excellent book on the subject. If you are an artist, and do not have this book, go sit in the corner and look guilty. You can buy a used edition for less than the cost of a good paintbrush, and it will be worth much more.

    Are you a lawyer?
    No. I am much poorer than a lawyer. If you are in need of legal advice, you should consult an attorney. Bring money.

    This is a reprint of an article that originally appeared in Epitome.

    Ellen Million has always had a passion for projects. Visit her site for prints and embarrassing archives.
    Would you like to support our contributors? As a subscriber, you could use your subscription fee to pay this author for their work, as well as receive lots of extra subscriber perks!



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