You may think this is asking a lot. You may ask rhetorically, "Well, if everyone is requiring that I sign a work-for-hire agreement, then what's the harm?" You may argue, "Well, if I don't sign, I won't get the job".
The Hard Reality
If you sign work-for-hire, you, the contractor, are helping perpetuate this agregious problem. When you sign, you are hurting the industry, your colleagues, and yourself. Every time you agree to absurd rights transfers, you make it harder for everyone to retain their creative integrity. If you sign, you are giving away your rights with no guarantee of future work ... If you don't understand this, slap yourself.
Contractors who agree to work-for-hire ARE THE PROBLEM.
We realize that due to the sheer number of unemployed designers in a saturated market, the thousands of "newbie" independents, and the ridiculous notion that "anyone can be a designer", there will always be a pool of desperate creatives who will sign anything in order to land a job.
The "But"
But we are confident that if the relatively small number of highly experienced, truly talented and reliable professionals who are available to agencies shrinks, we will eventually prompt change.
Our mission is simple: To educate, create a union of resolute professionals, and work to promote change. Join us. And let the 'big boys' know you won't bend over for them and squeal like a pig.
It takes a lot of time and effort to design, build, maintain, and research a web site like this. We have big plans to expand our efforts with PAL and stopworkforhire.com. But, in order to do so we will need to raise enough money to cover development costs.
We would like to:
• Automate The List and the Friends of PAL list.
• Integrate our registration process with the Friends of PAL list.
• Complete development of the forthcoming PAL site.
• Create marketing materials and processes.
... Any help, even a dollar, would be greatly appreciated.
Help us continue to help you. Chapter 7 >>
]]>Please note: Our purpose is not to defame companies or clients. This list is to be used simply as a resource for creative professionals and for potential clients to learn about the policies of the companies they work with.
If a company listing is found to be incorrect, we will happily change a listing. In order to do so, please send us a current copy of your contract, NDA, purchase order, or document that confirms your company has changed it's work-for-hire (restrictive convenant) policy.
It's easy to be a friend of PAL ... Send Documents to changemylisting@stopworkforhire.com
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]]>That said, as a contractor, you will get burned ... no matter how long you have been in the business. But you can minimize the damage and that is what we hope to help you do with this web site. The stories below are all true. Exciting, perhaps not, but they reveal a disturbing turn of ethics in our creative industry.
If you would like to share an experience regarding work-for-hire abuses or similar restrictive convenants, please submit your story to stories@stopworkforhire.com.
]]>For a project to be considered work-for-hire, two (2) conditions must be met:
Please note what is NOT included in the criteria above: Print advertising (such as brochures, logos, point-of-sale, package design, etc.); Web media (such as web sites, html emails, banner ads, etc.); Interactive media (such as Flash animations, demos, motion graphics, etc.); Electronic media (such as power point presentations, kiosks, etc.) This is, by no means, an exhaustive list and represents only a few examples of the type of work not included in the work-for-hire criteria.
(b) Company Ownership.
All right, title and interest in and to all Subject Ideas and Inventions, including but not limited to all registrable and patent rights which may subsist therein, shall be held and owned solely by the Company, and where applicable, all Subject Ideas and Inventions shall be considered works made for hire. I shall mark all Subject Ideas and Inventions with the Company's copyright or other proprietary notice as directed by the Company and shall take all actions deemed necessary by the Company to protect the Company's rights therein. In the event that the Subject Ideas and Inventions shall be deemed not to constitute works made for hire, or in the event that I should otherwise, by operation of law, be deemed to retain any rights (whether moral rights or otherwise) to any Subject Ideas and Inventions, I agree to assign to the Company, without further consideration, my entire right, title and interest in and to each and every such Subject Idea and Invention.
Despite the limitations imposed by the work-for-hire clause in the U.S. Copyright Act, far too many companies and agencies, interactive and design firms subvert the Copyright Law by including revised contractual language that specifies any work they deem appropriate as work made for hire.
Can they do this legally? Short answer: NO. According to lawyers we have spoken with, the vast majority of work-for-hire can't be held up to the scrutiny of the law if the criteria has been expanded to include media not listed in the Copyright Act.
So, why can agencies get away with including a web site, for example? Simple. The loophole is your signature. The moment you sign a document with work-for-hire language (or a restrictive covenant), you no longer have any rights to the work you create.
THE CATCH = COURT COSTS WILL RUIN YOU
You, the contractor, DO NOT have the financial resources to win a court case against a high-powered attorney who is defending an employer's work-for-hire agreement. Employers are well aware of this.
Are you Aware:**
• The average rate for an experienced attorney is $300/hour
• The average PRE trial costs you will pay simply to prepare and bring a case to civil court is 60k to 90k
• The average total cost of pursuing a law suit will cost between 100k and 200k
• The average cost to defend yourself, if the case went to trial ... 100k to 200k
k = thousand
What this means is simple. The average contractor can't afford to go to court at any cost. Again, Employers are well aware of this.
You may also come to the conclusion that, based on potential legal fees, the majority of threats you receive from clients regarding rights infringements probably amount to nothing more than hot air ... And, you may be right. Don't assume, however, that your lives couldn't be made miserable.
** How did we arrive at these numbers? We spoke with a local Atlanta attorney who has extensive litigation experience.
The bottom line: Legal docments are deliberately written in obtuse (confusing) language in order to provide an attorney with multiple avenues for legal action should a case ever be brought to trial. This also provides a defense lawyer with the tools he needs to defend you against an overzealous employer.
However, you need to be aware that there are many many legal avenues an employer can use to prosecute you for an alleged contractual infringement, including (but not limited to) work-for-hire, copyright, trademark, trade name, trade dress, public display, and patent. Each of these are separate and distinct areas of the law that will be ruled on and judged separately by a judge or jury. Feeling confident yet?
What should you as the contractor look for? Unfortunately, Copyright law doesn't prohibit any of the following unethical practices. Which means, you need to be vigilant and READ ALL DOCUMENTS CAREFULLY.
We have identified three primary documents where work-for-hire language may appear: contracts, non-disclosure agreements, and purchase orders.
A slow economy and a saturated market has emboldened employers to add increasingly broad rights ownership to contracts. Look out for:
Not all contracts are created equal. If “work-for-hire” does not appear in a section header, read the text under the “rights”, “authorship”, and "ownership" sections carefully. You may just find the clause buried in a lengthy paragraph of legalese.
A few other nasty practices to watch out for:
Protect yourself from misunderstandings, unfair business practices, and potential legal action.
GET IT IN WRITING
Confirm all assignments in writing prior to starting any job, spelling out the exact terms of the agreement and the specific rights transferred (licensed).
Don't Sign agreements that strip your rights or limit your ability to make a living or run your business.
Request a new Purchase Order or cross out the incorrect work-for-hire clause if one appears on a document after the fact.
Request a new Paycheck or cross out the incorrect work-for-hire clause on the back of the check and write "deposited without reconditions" to mitigate the attempted rights grab.
This material just scratches the surface of the legal side of work-for-hire. Your best defense is to learn and know your rights. Please take the time to educate yourself with regard to Copyright information and best practices for your business.
Please visit our Reference Section for more information.
]]>Before signing any document, first ask yourself this most important QUESTION: Why would you, the contractor, sign a document that the individual or company offering you the contract would NEVER sign themselves?
So, perhaps you have signed a document without reading the fine print. You decided you could "trust" the agency because they have a good reputation. You should have read the document. If work-for-hire language is anywhere in the document:
How can such agreements motivate contractors to produce the best work when they know the work they produce doesn't, in the end, belong - even in part - to them? Bottom line is that work-for-hire is bad - very very bad - for contractors.
Big clients want the best work, right? ... Every client wants the best work.
Work-for-hire is an easy way for agencies to control the message by erasing the text.
If a client is thrilled with the work, what difference does it make to an agency if they allow an artist to whom they have outsourced work claim authorship of the work produced? Agencies should be proud to align themselves with the most talented contractors they can find.
While we fully understand the need for air-tight contracts and self-preservation in this business, we can not understand how any creative agency that mandates a contractor sign work-for-hire can rationalize what is essentially legalized theft. Not to mention, it's simply hypocritical.
Where is the disconnect? There isn't a snow ball's chance in Hades that Verizon Wireless will award their multimillion dollar interactive campaign to an independent contractor or even a small agency. The only concerns large coporations have are that the agency they hire produces amazing work, on-time, and on-budget ... even if that work is outsourced to an amazingly talented contractor. Agencies should be proud to have the most talented people on their team, regardless of where an individual's desk is located.
Why do agencies outsource work anyway? Is it because they sold a product or service they do not produce? Is it because they simply can not hire one of every type of creative out there? Is it because they need to find a certain level of experience and reliability to manage a project? Is it because they simply want to save money by outsourcing to less expensive contractors? Or, is it because they don't have the tools in-house to get a job done?
All of the above and more, actually.
Experienced contractors are an agency's best friend when the dookie starts flying ... So, Agencies of Design, why insult contractors, and potentially damage a relationship with a client, by using a work-for-hire agreement?
]]>PLEASE NOTE: From here on, the word "contractor" will encompass freelancers, independents, artists, designers, animators, illustrators, writers, small businesses, etc. - in essence, any person or company hired by another individual or company to perform a creative service.
According to the U.S. Copyright Act, work-for-hire is a provision that allows a very narrow exception to the basic rule that the contractor who creates the work inherently owns the copyright to the work created. Work-for-hire grants authorship and ownership of the work produced to the individual or company (hiring party) who commissioned the work. You may have guessed that this nasty provision leaves the contractor with zero rights of any kind.
Actually, it’s pretty simple to understand. Our purpose is to explain how companies abuse the work-for-hire clause, to describe why work-for-hire is harming our industry and our livelihoods, and to address what we can do about it.
When you work as a salaried employee for a company (ad, web, design, etc.), you have a relative sense of job security, a steady paycheck, health insurance and unemployment benefits, and access to the latest hardware and software.
You also get, depending on the company, a few snappy benefits like vacation, sick pay, 401ks, profit sharing, gym memberships, paid training and summer Fridays. Not to mention ... company outings, happy hours and annual bonuses, to name a few perks. With all this wonderful stuff comes the explicit contractual obligation that as long as you are employed by said company, all the work you produce in the employ of said company is the intellectual property of said company. With the added nicety that should the work you help produce win an industry award, such as a One Show Pencil, you will be given credit for your participation. You were “hired” to produce “work”.
Ok, so what does work-for-hire mean when a company outsources work? And why is work-for-hire the bane of the independent creative industry? Work-for-hire is a nasty bit of legalese that is typically buried in contracts for the sole benefit of the company outsourcing creative work.
You get paid a set fee to become what is called, in industry parlance, a “silent partner”. These are false pretenses. You have no rights to anything you produce and no right to seek additional fees for the reuse of the art you produce. That negates the very concept of "partner".
On the other hand, the company that hired the contractor can use and reuse the work produced under a work-for-hire agreement for perpetuity and NEVER has to give the contractor credit for the work or pay the contractor fees for subsequent reuses.
You, the contractor, can’t even use work you have produced in your own portfolio. Work-for-hire renders a contractor absolutely impotent and completely invisible. Nothing more than a pair of hands. With absolutely no benefits provided by a company / firm / industry as compensation other than the flat fee they agreed to pay you when you were hired.
Is this why you became a creative? To allow someone else to take credit for your talent?
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