Work For Hire Situations for Designers and Creatives

Since starting my business, I've been approached a couple of times to do work for hire. I'm sometimes told that the money will be fantastic and the jobs aplenty, but I always refuse work for hire assignments.  Here are the reasons I refuse and why you should think very seriously before accepting this type of agreement.

What is Work For Hire?  According to The Graphic Artists Guild Handbook on Pricing and Ethical Guidelines, "Work for hire is a provision of the US Copyright Act intended as a narrow exception to the general rule that the artist or author who actually created the work owns the copyright to it." This is when the contractor or hiring party assumes all credit, control and rights to the work as if they were the creator.  In a full-time employee situation the work created by an employee is, by US Law, considered to be a work for hire situation and no written agreement is necessary.  Work for hire situations usually involve independent contractors rather than employees but in order to be eligible as a work for hire, the work must fall into one of the following categories found in Section 101 of the 1976 the Copyright Act:

1. The work must be specially "ordered" or "commissioned."
2. Prior to the commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire...
3. the work must fall within at least one of the following nine categories listed in the Copyright Act:

(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work, (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work.

What isn't a work for hire? Please note that most design work, websites, illustration, and artwork are not included in the above definition.  As designers and creatives, we derive our reputations and future business based on the quality of work we produce. In my mind, to simply hand over work for someone else to take credit is just wrong. The work I create is a labor of love and serves to not only enhance the business and identity of the client, but to bring to me future business as well. In fact, signing a work for hire agreement often means you can't even display this work in your portfolio.

The Handbook on Pricing and Ethical Guidelines also points out "By signing a work for hire contract, a freelance artist becomes an employee only for the purposes of copyright law and for no other purpose. In addition to losing authorship status, the artist receives no salary, unemployment, workers compensation, or disability insurance benefits; nor does he or she receive health insurance, sick pay, vacation, pension, or profit sharing opportunities that a company may provide to formal, salaried employees..."  Well if that doesn't cause you to stop and think, I don't know what will.  As a freelance designer, I have my own standard contract with my terms and conditions stated within, but GAG also urges artists to be wary of language in a contract you may be signing from a client concerning "all electronic rights" or general or obscure language such as "all rights in all media now in existence or invented in the future in perpetuity throughout the universe".

I want to point out a very important fact here. If there is no written agreement, if the agreement does not specifically state that the work is made for hire, if the agreement is not signed, or if the work does not fall into the categories above, then there is no work for hire and the artist by default retains authorship and copyright ownership.

But what if, for instance, you are creating a logo?  Clearly this is something that will be used for a company to establish their identity and will be used as a Trademark. Ok, there are several ways of going about this.  Ownership of copyright can be transferred by written contract that expressly transfers or assigns copyright in the work. Usually a higher fee is negotiated and rights can be retained by the designer for the purpose of displaying the work in a portfolio. Don't forget, according to Copyright Law the creator can control how he wishes to transfer ownership but making this unreasonably difficult for the client may not win you any popularity contests or any future assignments. I would however retain the right to display that work within the artist's portfolio or promotional advertisements.

Copyright and Intellectual Law is vast and I don't claim to be a lawyer.  I put these thoughts here to help encourage you to further explore these areas, and those areas regarding visual artists and original works or art and to be careful when signing contracts or when agreeing to certain work conditions. You can also read more about design ethics and copyright usage on my website at Dragonfly Blu.

Other excellent websites providing information on this topic:

GraphicPUSH - Work for Hire and Freelance Web Designers
AIGA - Intellectual Property: What does Work for Hire Mean for Designers?
CopyrightLaw.com - Work For Hire
Graphic Artists Guild
Artists Rights Society - Copyright Basics
R.I.G.H.T.S. - Redistribution in Graphics Has To Stop
Moral Rights - Wikipedia

Comments

[Igor]

Thanks for such valuable information! I have bad experince being ignorant of all these issues and some time ago my employer required me to remove any referencies I done during the work in the company, so I have very poor portfolio now (http://www.polyakov.org). I going to check if my employer eligible to do that, but it's hard to find the lawyer who know well related laws due their complexness. At least the lawyer of my professional association was confused with that...

P.S. If you want to see these works, just write me, and I'll give login and password to access secret area :)

[Lisa Mikulski]

I'm glad you found the post helpful. Please remember that these standards and laws are based on US copyright. I do not know what the laws are for Finland.