July 29th, 2011 by Alicia Calzada
Work for Hire. To many it’s an ugly word. To others, it is just something they live with. What it shouldn’t be is ignored. If you are a freelancer, and you sign a contract providing for a work for hire, you need to know what it means. There are plenty of articles to tell you to avoid it and why, but this is intended to help you understand the basics.
What is a Work for Hire Contract?
Copyright is all about authorship. The author owns the copyright, that is, the right to copy and publish the work. When you are a staff photographer, the photos you produce on the job are automatically work for hire. The employer is consider the “author” and therefore they own theÂ copyright. So if it comes with a salary, benefits, insurance, and a 401(k), it’s probably a work for hire. The employer owns the copyright and all of the benefits that go with it, such as control over where and when it is published. The upside is that you have a salary, benefits, insurance and a 401(k).
What a work-for-hire contract does is create the same kind of relationship between a client and someone who is not an employee. In other words, the client gets the benefit of the copyright and total control over the work. But you don’t get a salary, insurance or a 401(k).Â Not just any photo assignment is eligible for work-for-hire agreements. Rather, only “collective works, motion pictures, translations, supplementary work, atlases, and test material” can gain work-for-hire status which basically transforms the client into the author. Even if a work falls into a category making it eligible for WFH status, there must be an express agreement, signed by the photographer.
Is it a WFH?
How do you know if you are agreeing to a work for hire? First, as noted above, if you are an employee whose job it is to take pictures, this is a work for hire automatically. If you are a freelancer, the language in a work-for-hire contract will specifically say “work for hire” or “work made for hire.” Sometimes it will be a little more subtle and state that you are assigning the copyright, which has a similar practical effect. Most WFH contracts actually say both.
Signed Contract Required for WFH
It is important for both editors and photographers to know that outside of the context of employment, a work for hire only arises in circumstances where there is a signed contract and only is available in certain circumstances. There is no “implied” workÂ for hire. A client cannot tell you that “work for hire” is their policy and by working for them you automatically agree to it. You must actually agree to it in writing, before the assignment. Furthermore, a client cannot tell you after you have already shot the assignment that you must sign a WFH contract to get paid (this could be an ineffective modification, unless there is additional payment offered).
The Gray Areas
So, if you’re a full time staff photographer, it’s clear you’re in a work-for-hire when you are on the job. If you sign a work-for-hire contract for a photo assignment for a publication, you are probably in a work for hire. But there may be some less exact circumstances that you find yourself in.
I created this 3-step chart a couple of years ago to help clarify when something might legally be a work for hire, and when it isn’t. The chart examines a series of factors that make it more or less likely that it might be a work for hire. Click below to download it.
“Work for hire” not the only words to avoid.
It is important to note that while “work for hire” ensures a transfer of copyrights, it is not the only way you can end up transferring your rights. Some contracts simply state that you “assign” your copyright to them. This also must be in writing, but it has the same effect. You should also watch out for contracts that give the client the “exclusive” right to use the photo. You may still retain the copyright in that case, but it’s pretty useless if you don’t have the right to use the photo.
It’s important not to be intimidated by this language, but to learn about it, and learn to spot it. If you are like most photographers, you will find that giving up your copyright is rarely a good deal, but many photographers also have decided that in a business, everything has a price, and there are some circumstances that warrant it. While photography can feel very personal, it is important to approach such business decisions from a business perspective.