What is work-for-hire?
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.
Work-for-hire as defined by the U.S. Copyright Act, Section 101, page 7
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.
- Work-for-hire is a means for a company to treat a contractor as a full-time employee without having to provide any of the benefits of employment to the contractor as "compensation" for loss of copyright and any future income the company may generate from reuse of the work produced.
- Work-for-hire effectively strips any and all rights to any and all work the contractor creates while working under such an agreement. “All” work includes: sketches, doodles, layer files, prep files, finished art, everything ... You didn't doodle on your hand did you?
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?
Work-for-hire is exploited by companies for their own benefit. Chapter 2 >>