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: Location

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

Location, location, location. We all know it’s important, but why should it matter when you’re signing a work for hire contract? These days, with so many freelancers working with clients all over the country (if not all over the world), it’s become crucial to decide what state laws cover the contract in question. I can’t offer much advice on international projects — I just don’t know much about how international contracts would work out.

If something goes wrong with your project, and you find yourself in a position where you need to take legal action, you could theoretically handle it in your state of residence, or that of your client. Your contract may stipulate which one, by establishing location with a clause.

Such a clause could read something like:

This agreement has been negotiated, executed and delivered in the State of NAME OF STATE. The parties hereto agree that all questions pertaining to the validity and interpretation of this agreement will be determined in accordance with the laws of the State of NAME OF STATE.

Because contract law can vary, and it can be expensive to handle a case in another state, it’s in your best interest to make sure that your contract is handled in your home state. However, your client has exactly the same situation.

There’s another reason to keep an eye on this sort of clause: if you, according to a contract, executed a project in another state, and were paid for it, legally, taxes on that income must be paid in that state.  The IRS isn’t going to get too picky — they’ll get their share of your income either way — but state tax collectors might. This tax trap isn’t limited to work for hire contracts, either. Any project you complete can technically be executed in a different state.

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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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Just What Is A Work For Hire? A Freelancer’s Primer

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:

  1. 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.
  2. 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.
  3. 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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L’Shanah Tovah!

It’s 5768 now, and I’ve got some questions for all you freelance writers. What days are important enough to shut down the computer?

A lot of people are taking a couple of days off to go to the synagogue, but how many are actually not working at all on those days? And Ramadan falls during this time as well — the holiday practices don’t prohibit work, but Muslims are expected to focus on religion during this period. And with Christmas not so far away, it’s worth talking about for everyone.

In these days of mobile offices and constant work, I don’t feel comfortable taking even a full day away from my computer. At the very least, I’ll log on in the morning before I go to wherever I’m headed or in the evening after I get back. That doesn’t really work with the idea of the Sabbath of any variety, does it?* I haven’t figured out a way to reconcile it, personally. It’s an important issue, too, because there are all those notorious freelancers who tote a laptop along to the beach, family reunions or wherever else they’re headed for vacation. It seems like we’re all courting burnout here. I’d like to argue that we’re not — that we work every day, but for shorter times, and on projects we actual enjoy. But I don’t have much data on it either way.

*There’s an odd corollary to the religious aspect here: what about the appearance of work? I may not work on Shabbat, but I might have queued up an automatic update on my blog. It would appear that I’m still working. I may need a rabbi’s advice on this one, because it’s way out of my religious league.

What’s in a pen name?

Mark Twain did it. So did Lewis Carroll and George Sand. And Nora Roberts, Robert Heinlein and thousands of other modern writers.

There are many reasons a freelancer might consider taking up a pseudonym: a common name, an opportunity to write a bodice-ripper, a preference to keep one’s private life separate from one’s work. Generally, however, a pen name is nothing more than a polite fiction — it appears in print, but you sign contracts and file for copyright using your legal name, with your pseudonym noted as such in paperwork.

If, for instance, you were to file a copyright under your pen name, and later needed to enforce it in a court of law, the case stands a chance of being thrown out, or drawn out and very expensive. You can face legal problems if you sign contracts using a pen name, as well.

Some writers have been known to use a pseudonym to get around contract restrictions — i.e. a freelancer may be have signed a contract to write about business topics for one website exclusively, but an opportunity to write a piece for another site might crop up. If something similar happens to you, be aware that doing so still counts as breaking the contract. It may be easier to simply talk to everyone involved rather than try the round about tactic of a pen name.

A writer might also use a pseudonym if he or she is attempting to write about a topic that might be problematic — for example, a doctor writing about the dangers of a particular hospital might be exposing his professional career to damage, or a writer covering a powerful figure involved in crime. While this is a reasonable action to take, generally one cannot rely on a pseudonym as one’s primary form of protection.

There are a wide number of factors to take into consideration if you want to use a pseudonym. There are many benefits, however: a writer can avoid being typecast into a particular topic or genre, most people won’t go to the effort of looking up copyrights, and it can be used as a marketing tool.

The Dangers of Self-Plagiarism

It’s tempting to sell first rights to an article a couple of times — just changing the title and maybe a bit of the text. It used to be that no one would notice. But it isn’t ethical and it’s fairly easy to get caught.

Many editors run any articles they get through any of a number of plagiarism checkers as a matter of course. It cuts down on their liability and they can catch problems very quickly. Depending on the contract they hold with their writers, editors can do all sorts of nasty things if they find a writer has committed plagiarism, and if they were contracted for first rights of some variety, all sorts of hell can be let loose.

Even worse is the damage to a writer’s reputation. No writer wants an editor to comment negatively when his or her name comes up, but it’s guaranteed to happen in a situation like this. Heck, this is the sort of story an editor might bring up at lunch with other editors, creating a sort of informal blacklist.

So, how can a writer reuse articles and information without getting into hot water?

  • Reprints — Depending on the original publisher’s contract, you can often sell reprint rights and continue making money off of the same article over and over again.
  • Rewriting — You can write about the same information over and over again, as long as you write it differently each time. This can actual help you to gain a reputation as an expert on a given subject.
  • Portfolio — Use these pieces to emphasize your skill as a writer. Slap them into a portfolio and show them off.
  • Awards — There are awards for published travel pieces, business writing and everything else under the sun. Why not enter your excellent pieces to contests and see if you can win some prize money?

It’s all about reusing your work without infringing on rights you’ve already sold, as well as a few ethical considerations. It’s just not the right thing to do.

Recent Reading

Since I get to blather on about writing here, I feel like blathering about good writing every so often. Today, I’m going to run down some of my recent reading and whether it’s worth running out to the library, etc. for a copy. So, get in, sit down and hold on.

Gods in Alabama by Joshilyn Jackson (275 pages)

This is Jackson’s grand debut (her second, Between, Georgia came out last year and a third, The Girl Who Stopped Swimming, is due out next spring) and is absolutely classic book club material. I’m not saying that it’s not a decent book, but there are lots of little questions of perception and meaning that are ripe for discussion. To that end, there are even a couple of pages of discussion questions at the end. Brilliant decision, in my mind. If you have a book you can market to reading groups, hurray! You’re guaranteed bulk sales.

The topic is grade A book club material as well, and one of my favorites: the classic Southern revelation of family secrets. Jackson handles it well, swinging between perfect humor and unreasoning violence. There are a few “this has to be her first book” moments, but over all, it’s a pretty decent read.

The Dark is Rising (The Dark is Rising, Book 2) by Susan Cooper (244 pages)

This is the second (and main) book in a series of five. When I was growing up, it was also one of my favorites: today, kids want to live in Harry Potter’s world, but I wanted to live in Will Stanton’s. A few weeks ago, I saw the trailer for David L. Cunningham’s adaptation of the book, and was utterly horrified. I felt the need to re-read the book to affirm that it wasn’t total crap when I was a kid (unlike my expectations for the upcoming movie).

Accolades to Cooper as a businesswoman and all that. But I have to question her decision to lend her name to a project so obviously different from her novel. I’m all for making money, but a lot of fans of her books are going to be very disappointed.

The Dead Beat: Lost Souls, Lucky Stiffs, and the Perverse Pleasures of Obituaries (P.S.) by Marilyn Johnson (244 pages)

This is one of the best books about the written word I’ve read this year. Johnson’s review of the obituary writing trade turns up some real beautiful techniques, and showcases brilliant examples. I’ve always considered obituary writing to be a sort of way for a newspaper to test out a new writer (and I’m sure you have, too), but it’s obvious that obits can truly be works of art. For any freelancer working on profile writing, get a copy of this book. It’s a fabulous instruction manual.

The Freelance Resume Conundrum

I bet you didn’t even know that there was a freelance resume conundrum, did you? It’s pretty basic – the typical resume format of objective, skills and as much employment history as you can come up with just doesn’t work for freelancers.

Say Betty is a freelancer – she has a regular gig writing for a local magazine, and another one blogging. On top of that, she’s always querying magazines and she has a fair number of clips. Now, in theory, it would be nice if Betty could get jobs based solely on those clips, because your writing abilities should be more important than how long you wrote for Regional Auto Magazine.

But a lot of editors want to see a resume, especially if you’re querying out of the blue. So, how can we give them a resume that doesn’t make us look like flakes that jump from publication to publication?

How about a template better suited to our needs?

  • List your name, email address and phone number.
  • Throw out the objective. If you’ve written an excellent query letter, you shouldn’t need an objective.
  • List publications your material has recently appeared in. A bulleted list should do well here. Think CV here, rather than resume. You can also list projects, such as PR campaigns here.
  • Your skill set should include styles you’re familiar with (AP, Chicago, etc.), topics you can write about effectively and any other related skills.
  • Include relevant work history, but don’t clutter it up. If you were a technical writer in corporate America, include it. If you flipped burgers, don’t.
  • Education is, of course, required. I’d recommend including internships and certifications under education, rather than giving them their own section.
  • You can list any affiliations you hold, such as the Freelancer’s Union or the Association of Women in Communication. It’s not necessary, though.

That sounds a lot less stressful than making Betty wonder if she should include that month she spent as a contractor with the local public relations agency under her work history.*

Make sure that you have good clips to send out with your resume, however. Examples of the excellence of your writing are more valuable than the most polished of resumes.