Work For Hire Clauses: Ownership of Related Items

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

During the process of completing a writing project, you may do extensive research, covering a number of topics related to your client’s business. You may have intentions of rewriting the same material down the road with a different slant. Double check your work for hire contract, though. Depending on the interpretation taken, a clause controlling the ownership of materials related to your project might cover some of that research. Such a clause might look something like this:

WRITER recognizes that all records and copies of records touching CLIENT’s operations, investigations and business made or received by WRITER during the period of this agreement are and will be the exclusive property of CLIENT, and WRITER will keep the same at all times in WRITER’s custody and subject to WRITER’s control, and will surrender the same to CLIENT immediately upon the request of CLIENT, or upon completion to agreed upon services.

This isn’t the sort of thing that you have to worry about going to a court of law, but it can cause arguments with clients. There isn’t a great remedy, either. If a client takes it into their head to prevent you from writing about their company down the line, he or she may wind up being more trouble than they are worth.

Related items, by the way, are very different from proprietary information, which we covered earlier in this series.  Your clients have a legal right to protect their proprietary information and their business. They do not have a legal right to control over research you have done through outside channels, unless you grant one to them through a contract.

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Work For Hire Clauses: Proprietary Information

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

Depending on what sort of work for hire project you’re working on, your client may provide you with information to complete the project. This information may or may not be considered proprietary — information that they effectively own. In the most technical legal sense, proprietary information must be some kind of intellectual property: something that can be copyrighted, trademarked, or patented, or can be considered a trade secret.

If your project requires you to have access to proprietary information, your client will likely include a clause in your contract, restricting your use of the information. Such a clause might read something like this:

The parties hereto acknowledge that during the course of WRITER’s service to CLIENT pursuant to this agreement, it will become necessary or desirable for CLIENT to disclose to WRITER a substantial amount of CLIENT Proprietary Information. WRITER fully understands that the maintenance of such information in strict confidence and the confinement of its use to CLIENT is of vital importance to CLIENT. WRITER agrees that the information and knowledge divulged to the WRITER by CLIENT or which WRITER acquires in connection with or as a result of WRITER’s services hereunder will be regarded by WRITER as confidential.

Generally, this is a reasonable action on a client’s part and it’s only rarely that such information is so useful to you that you’d do anything to use it on another project. Problems creep in, however,  with enforcement. I’ve run across clients that assumed handing a writer a stack of research they did on the internet was giving a writer proprietary information. Afraid not, kids. Neither can this clause limit your ability to write about a specific topic down the line.

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Work For Hire Clauses: Assignment of Copyright

This week, we’re focusing on ‘works for hire’ and the contracts that control them.

As I mentioned yesterday, since the Copyright Act limits works for hire to specific types of commissioned works, clients may rely on a complete assignment of copyright to make sure that they wind up with control of the work in question. Many work for hire contracts include an assignment of copyright clause even for covered commissioned works, as a sort of belts and suspenders type of protection.

A typical assignment clause might look something like the following:

Ownership or Work. Works shall be considered made-for-hire under the United States Copyright Act and, at all stages of development, shall be and remain the sole and exclusive property of CLIENT. WRITER further agrees to take all actions and execute and deliver all documents requested by CLIENT in order to evidence the assignment of CLIENT’s rights in and to the Work. WRITER further agrees to irrevocably assign the entire copyright in and to the works to the CLIENT.

The bad deal about this sort of clause is that you will not be able to sell reprint writes to this work get royalties, republish the material yourself, or even post parts of it on your website or blog. Well, you can, but you’ll have to license it from the new copyright holder, and the law says they can charge you for such a license.

There is a good side to this sort of thing. You have grounds to ask for much higher pay than your normal rates, because you’ll be losing out on later revenue opportunities. You’ll also be asked for work for hire contracts, typically, on material that you won’t be able to resell very easily. Business owners will often ask for this sort of clause on brochures, employee handbooks, etc. You can also reuse material by rewriting it with a new slant — sure, you’ll still have to sink some more time into it, but it’s a way to continue making money from your knowledge.

I’m not a lawyer, but my litmus test on acceptability for signing away my copyright is based on two questions: Is it creative writing of any sort? I won’t sign away my rights to any fiction, poetry or creative non-fiction projects (i.e. essays). And, is the pay going to make up for the fact that I can’t reprint the material? I don’t have a set rate that makes it worth my while, but after a few contracts and getting burned once or twice, you learn how you value your own time.

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