Copyright Infringement: How to Protect Yourself When You ‘Work for Hire’

Business Tips March 8th 2014 11:41 AM 3 Comments

Copyright Infringement – a Common Occurence

It seems not a week goes by that there isn’t some manner of legal dispute worthy enough for national media, centered around photography. Usually it’s photo/videographic work that’s been somehow misappropriated, or flat out stolen. Recently, it was the Color Run debacle that had everyone with a camera and a website readying the pitchforks, and next week, it’ll be someone else crossing the line of copyright infringement. Just try not to let it be you. A step in the right direction is to understand the term ‘Work For Hire.’

Being known to be quite detail oriented, and into photography, it should’ve come as little surprise when a friend messaged me recently to ask if ‘work for hire’ is a bad thing for her. Why she thought I was qualified to answer I’m not sure, as I don’t think intermittently watching ‘Suits’ and ‘A Few Good Men’ qualifies me to act as legal counsel. But, these are the facts of the case, and they are undisputed. So, I took what I knew of the term, did some digging, and have re-affirmed my feeling that it’s important that all photographers have a good grasp of this.

‘Work for Hire’

In the US and many other jurisdictions, the creator of the images is automatically recognized as the holder of copyright of said images. ‘Work for hire’ is a clause, or doctrine, that affects these ownership rights. It serves as an exception to the aforementioned principle that the creator of the work is the legally recognized author.

To distill this particular vintage would be to say that in a situation where a photographer agrees to ‘work for hire,’ the work then becomes ‘made for hire,’ and at which point it is the employer of the photographer who is considered the legal author. An employer may be an individual, organization, corporation, or any manner of legal entities.

[REWIND: If You’re Gonna Steal… No Wait, How About Just Don’t Steal?]

 

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What Does That Mean The Employer/Client Can Do?

Basically, any darn thing they want. When a client retains ownership of the work that was made for hire, you as the creator have absolutely no copyright to it. You can’t control what the client does with the work; they can publish whenever, as many times, and wherever they please. They can resell the rights to others also, since they own them. Furthermore, you as the creator, will require permission from the client if you want to do anything with what you’ve created. This includes any and everything, up to and including, non-commercial rights to showcase your work personally. That being said, if you were using it for this, or for a portfolio, ‘fair use’ would likely come into play.

Under the old Copyright Act prior to 1976, converting any work into a work made for hire was rather simple. Since 1976, it’s much more stringent. There are currently a few ways that the ‘rule’ can be applied to photographers:

1. If you’re a regular employee of a legal entity, your employer automatically assumes ownership of any work you do within the realm of your employment, as it will be considered ‘work for hire.’ They will have no obligation to credit you and even if they did credit you, it would have no bearing on copyright – they would still hold it.

2. If you are not an employee or you are a freelancer, there are specific criteria that must be met, according to the copyright statute, in order for your employer to own the rights to your work. They are:

  • a contribution to a collective work (like a piece for a magazine, anthology, or encyclopedia)
  • 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

3. For any of the above points to have any bearing, there must also be a written agreement clearly stating that your work was “work made for hire” (or “work for hire”). Signing the agreement before any work has commenced is recommended.

Caveats to a ‘Work for Hire’ Contract

At this point, it’s important to understand that even if you have signed a “work made for hire” contract, it doesn’t have to mean that your work is truly work made for hire. In court, a determination will be made to see if all requirements are met, and if not, the courts will disregard the ‘work made for hire’ portion of the legal language, and deduce if you have actually transferred your copyright. This can be good news, or bad, depending on what side of the fence you’re on.

The definition of ‘employee’ can come into question also, and some companies have tried to argue that if a freelancer is hired, they are considered an employee. Thankfully, there is actually a test to see who qualifies as independent contractor which I dug up, and if you’re bored or your cable’s out, you can find it here. But the long and the short of it is that the employer/client will not have a peachy time establishing that freelance photographers are actually their employees. It’s also recommended that whatever contract you sign include explicit language defining the photographer as an independent contractor.

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Californians Listen up:

Entering a work made for hire within California’s borders has some great consequences and liabilities for the client. Even if a client hires a freelancer, but they sign the work for hire contract, the client will automatically become viewed as an employer and the freelancer an employee. As as employer there would have to be considerations made for things like worker’s compensation and unemployment insurance. Not having those things can be viewed as a crime in the state. The exception to this rule is if the client hires a company like a contractor company and not an individual. See here for more.

When To Use ‘Work for Hire’ Contracts to Protect Yourself from Copyright Infringement

Well, getting into a discussion about this with a client is essentially a negotiation on the material’s copyright license. This stuff is pretty detailed and frankly, I neither have the time, knowledge, nor the inclination to go over it all at here. I would highly suggest a lawyer aid in the process if you think the value of the project makes it worthwhile.

That being said, knowing how the ‘work for hire’ laws work in your area should be enough to guide most of you. You may be able judge by the size of the client, the scope of the work, the possible applications of the work, and decide what’s best for you and your client. You may find that instead of ‘work for hire,’ issuing a license may be the best route to go.

Such licenses may include licensing exclusive rights for the first use, and putting additional fees for all that follow. Or putting a license to rights for only a set period of time, or for a specific purpose. Only you, possibly at the advice of a lawyer, can figure out if it makes sense or not to sign into a ‘work for hire.’ It doesn’t really have to be confusing, and I don’t think most work even warrants the type of discussion. Yet, I guess, as with Color Run, you can never be too careful.

Note*
I am not a lawyer. I’ve done research and this info is strictly for educational and informational purposes. Neither I, nor SLR Lounge, provide any legal services or advice so please do not take this as that of an attorney. A real attorney would best serve your needs.

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About

Kishore is a photographer and writer based in Miami, though he can often be found at dog parks, and airports in London and Toronto. With a passion for beauty and aviation photography his work is all at once focused and eclectic. He is also a tremendous fan of flossing and the happiest guy around when the company’s good.

3 Comments

  1. shamb

    Even if you are work for hire, remember, you can put additional constraints on the client on places such as your time-sheet. I used to freelance as a web application developer and put a words to the effect that ‘the work only becomes the client’s property on payment’ and ‘unsatisfactory work must be noted in writing within 5 working days and all other work must be paid at the agreed price’. When they signed the time-sheet, they agreed to those additional terms.

    The two most common issue I have heard as a freelancer is clients running out of money and then trying to reduce the fee by stating that the work was substandard. Those two clauses prevent this… or at least, it never happened to me!

    Don’t be put off by clients saying ‘we already have a contract, you don’t need these additional terms’. I usually say ‘those are your terms, here’s mine, there’s only two: they are fair and protect us both – I can’t ask for more, and you can’t try for less’.

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    • Kishore Sawh

      Shamb, hello. Thanks for this insightful post. It’s good to hear a real world example and how it can be implemented. Thanks for sharing. Cheers

      1
  2. Bryan Giardinelli

    I’m currently about to start my own legal battle with my previous overseas employer. I was brought on as a “full time independent contractor” under the role as the companies Senior Creative Director. This company is a multi-million dollar 60 +/- man operation based in Germany, and I am located in Southern California. The notion that I would not have to relocated was agreed upon on contract.

    In January, we had booth at the NAMM Music Convention in Anaheim, CA. While the company paid for the booth location, all of the event promotional material was paid for by me, with the confirmed guaranty in having every penny reimbursed. What’s more, not only was all of the aforementioned media paid for by me, but it was also completely created by me (in addition to most of the media on all social network outlets).

    About a month ago I was unexpectedly and abruptly let go by my employer via one of the utmost unprofessional emails imaginable. To sum up the email: “We can’t afford you.” Forget the moral issue of hiring me with an agreement on my salary not two months earlier, I was given no form of severance & no mention of the prior balance they already owed me.

    I have yet to receive my paycheck for the month of January–and I dont even want to think about getting paid for time-served in the month of February. The contract also states that no less than eight weeks notice is to be given prior to termination of employment.

    I’ve dedicated hundreds of hours (well over my contracted 200 hours a month), sacrificed my relationships with my family, friends & girlfriend, and passed up a job opportunity working for Google that will most likely never come again.

    The company has since attended multiple trade shows and events using my media, continues to use my creative property online and on advertising print, and has not returned any of my contact inquiries. Every video, photo, advertisement & document that every person views, touches or reads was created by me.

    I feel like I’m about to be forced into bankruptcy by a company in which I, for lack of better words, made viable in an American market. I’ve gone since December without pay, put nearly $5000 on an AmEx gold card on good faith that I would be paid back, and am essentially made to look like an idiot in the end.

    If there is one single thing I can stress to every other creative professional on here, it’s that you MUST have everything in writing. For every phone call, follow up with a confirmation email. I am lucky that I had this intuition from the get-go. Every conversation that mattered was backed up with a written text or email. When it comes to claiming your rights in court, this fact alone could make your case, or break it.

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