This week, we’re focusing on ‘works for hire’ and the contracts that control them.
When you sign a contract to complete a work for hire, it’s a bit different from agreeing to just write copy for a brochure or write an article. Typically, even if someone else pays you to write something, you retain copyright. But, if you’ve contracted for a work for hire, you’ve signed that copyright away to the person paying you.
Publishers and employers especially like using work for hire contracts, because you can’t resell an article or piece of work down the road — in other words, no reprints! This can be a problematic situation for a writer; after all, we want to maximize our income. Typically, though, you can negotiate a higher price for a work for hire, making your situation a little better.
Now, employers can insert clauses in their workers’ contracts or handbooks stating that all work done at the company is a work for hire, but they can’t pull that over on a freelancer, where it’s not unheard of to negotiate a separate contract for every project. Instead, each project must meet three qualifications to be considered a work for hire under the law:
- The work must be commissioned or specially ordered. If you previously wrote the material in question, no matter whether or not it was published, the work is not a work for hire.
- Both you and your client must sign a document stating that the work in question will be a work for hire, before you begin the project. In most cases, it can simply be a clause within your contract.
- The work must fall into the categories of commissioned works listed in the Copyright Act (translations, contributions to a motion picture or other audiovisual work, contributions to a collective work (such as a magazine), atlases, compilations, instructional texts, tests, answer materials for tests, supplementary works (forewords, illustrations, indexes, etc.)). Considering how many inclusions there are, there are still more exclusions, aren’t there? Think about all those offers to write e-books as works for hire. Technically, they can’t be.
So, how can a contract get around the fact that so many items are excluded from the categories of commissioned works? As the author, you can make a complete assignment of copyright and essentially hand over your right to the material to your client.*
*There are only specific situations where I would be willing to hand over full copyright, but there are times when the money is just good enough. Readers, help me out — tell me what it would take to get you to assign full copyright?
Check back tomorrow for more about copyright assignment clauses.
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