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