Design Bad Word: Work For Hire
I’ve recently been contacted more than once by small “one man marketing/consulting groups” that want to expand their services into design, but lack the skills to do it themselves. They approach me as individuals that “need work” and only until I start asking questions does it come out that they have their own business and want me to work under theirs. Sometimes I think they purposefully omit talking about authorship, either because they assume that I’ll just hand over all my rights or they hope that i’ll sign some sort of contract with the “work for hire” clause in fine print and when I contest it, they can point at the document.
Truthfully, I’m painting these people in a sinister light. Often times they just assume that all rights come with commissioning a creative, and this simply isn’t true.
If you couldn’t tell, this month’s design bad word is “Work For Hire”.
First off, what IS “Work for Hire”?
According to the Copyright Act, Work for hire can be defined as:
[quote ]If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organiza- tion, or an individual.[/quote] ( source: copyright.gov )
There are some conveniently vague terms that were meant to define what constitutes as work for hire. Here are the basics:
A) If you’re an employee of a company. This means someone who is on the payroll, gets benefits, paid vacation etc. For example, an in-house agency creative with a permanent full time position and salary. Anything you create is owned by your company because you are hired to work for them. Depending on the nature of your work, your company may LET you claim authorship and use the work in your portfolio, provided that you also credit the company. Be sure to check before you sign your name on the dotted line so that you don’t receive a cease and decist letter.
B) If you’re an independent contractor commissioned to perform a specific service that falls into one of the 9 categories below AND you have to sign an agreement saying the work is WFH. The employer can’t just say it is after the fact in hopes that will come true.
1. As a contribution to a collective work – makes sense, you don’t own it because you didn’t do all the work.
2. As a part of a motion picture or other audiovisual work – again, very collective in nature. You can’t own it all.
3. As a translation
4. As a supplementary work – Defined as: A work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes.
5. As a compilation
6. As an instructional text
7. As a test
8. As answer material for a test
9. As an atlas
So there’s actually a lot that doesn’t fall under those 9 categories. Unfortunately it’s happening anyway. The companies that have approached me have either assumed that work for hire has a much more broad definition, or they hope that we don’t know any better.
Some creatives, especially young ones just looking for experience or paid work will do anything, even if it compromises everything we as creatives stand for.
Here’s why you shouldn’t even THINK about agreeing to “Work for hire”
- If you’re an artist, you lose all possibility to be able to use the commissioned artwork elsewhere or for resale. So if you make an awesome t-shirt design for company XYZ, you couldn’t put it on a skateboard and sell it on your own. They own it forever, and don’t have to pay you royalties either. Whatever they paid you, is all you’ll ever see. (this is why licensing agreements are soooo important.)
- You can not use the work you produce to market your own business in your portfolio (web or print). This means they claim AAAALL the credit and you will never be associated with the project.
- You can not enter work into design contests. AND if they do, you won’t be recognized either!
- You receive zero company benefits, because you aren’t an employee.
- It hurts the industry. The more people think this is ok, the more they will get away with it, thus harming our rights as creatives.
So agencies who participate in Work for Hire may think they are benefitting by owning all the rights, but in most cases they aren’t.
- Often times, unless the agency pays proper compensation for all rights, the project will suffer because the creative isn’t as motivated or excited about producing a project they can’t claim.
- Work for hire is a huge tarnish on an agency name. No respectable designer who know’s their worth would want to work with them, thus hurting their chances of finding someone who can produce good work. Unfortunately no one will know unless people say.
- It create’s inconsistent quality of work, when the business either doesn’t hire the same creative back, or they aren’t available. Clients WILL notice.
There’s really only one reason why contractors should agree to work for hire, and that’s if they are compensated appropriately for all the rights. Do your research and look into going rates on projects. Don’t get suckered into a “$5-an-hour-more-than-what-you-make-in-your-day-job” line, or even “there will be more work coming” because it isn’t truly worth the gamble.
*NOTE- I am not a lawyer, nor can I provide legal council. My opinions have been formed by having discussions with creatives in the community as well as reading articles about work for hire. Always read every word of your contract and never sign something you don’t understand.