You did what you were supposed to do. You got a contract – in writing! – for your latest freelance writing job.
But now, looking over it, you see four words that you’ve been told are bad news: “work made for hire.” You’ve heard this is a big no-no, the copyright equivalent of signing away your first born.
Is that really true? Let’s see what the law says.
What is “Work Made for Hire?”
The term “work made for hire” is connected to the U.S. Copyright Act of 1976. The term’s most basic purpose is to change the default rule of copyright ownership. Ordinarily, you as the author automatically own the copyright to a work from the moment you create it. But with “work made for hire,” where it applies, the person paying for the work, not you, is treated as its author.
The key words in that last sentence are “where it applies.” That’s because “work made for hire” is limited in scope. Where it applies depends a lot on your relationship with the person or company paying you.
Are You an Employee?
If you’re an employee (as opposed to an independent contractor, freelancer or consultant – all interchangeable terms), the implications of “work made for hire” are clear: the copyright to any work you produce in the course of your employment belongs to your employer, not to you.
You’re probably thinking, “Well good thing I’m a freelancer and not an employee.” Not so fast.
The legal definition of “employee” differs somewhat from its everyday meaning (isn’t the law fun?). The IRS uses a multi-factor test to determine whether a person is an employee or an independent contractor. In general, the more control your client has over how, when, and where you work, the more likely you are to be classified as an “employee” – regardless of how you and your client characterize your relationship.
There’s also an important caveat for California. There, “work made for hire” may automatically create an employer-employee relationship between you and your client, with serious legal consequences for the client. The bottom line: don’t use “work made for hire” in California-based freelance agreements.
‘Work Made for Hire’ for Independent Contractors
Let’s say you are indeed an independent contractor. In that case, your work won’t qualify as a “work made for hire” unless it falls into at least one of these nine categories:
- a contribution to a collective work (like a piece for a magazine, anthology, or encyclopedia)
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work (like a foreword, afterword, bibliography, appendix, index, or editorial notes)
- a compilation (like an anthology, database, or anything that qualifies as a “collective work” from category 1 above)
- an instructional text (generally, any text that could go in a textbook)
- a test
- answer material for a test
- an atlas
Even if your work falls into one of these nine categories, there must also be a written agreement stating that it’s a “work made for hire” (or “work for hire”). To be safe, the agreement should be signed before the work is created.
Make Your Agreement Work for You
If you’re a freelancer and your work doesn’t belong to at least one of the nine categories above, it is not a “work made for hire” no matter what your contract says. Of course, this is a problem if both you and your client want and expect your copyright to belong to the client. In that case, to avoid any doubt, in your contract you should also “assign” (give) your client all “right, title and interest” in the work. This assignment will be effective even where “work made for hire” is not.
On the other hand, if you want to retain any control whatsoever over your work, you shouldn’t agree to a “work made for hire” or an assignment of copyright. Instead, a license is the right tool for you. When you grant a license to your work, you remain the owner, and you can limit how, when and where a client can use it.
Get on the Same Page
“Work made for hire” doesn’t need to cause worry and confusion. Understanding its meaning and application – and coming to a clear understanding with your client about who will own your work – will go a long way toward getting you both the agreement you want.
Image courtesy of Stuart Pilbrow
Vinay Jain, an attorney and former freelance writer, is head of legal at Shake, a mobile application that allows you to create, sign and send legally binding agreements in seconds.
This information is for educational and informational purposes only. Shake is not a law firm, does not provide legal services or legal advice, and is not a substitute for an attorney’s advice. Please consult a licensed attorney in your area with specific legal questions or concerns.