We continue our discussion of work for hire agreements by addressing “termination rights” and why they matter in the work for hire context.
Read Part I of this article, in which the concept of authorship is described and the idea of work for hire is introduced.
Read Part III of this article, for the exciting conclusion!
In a work for hire, the person doing the hiring or commissioning the work becomes the author, automatically. As the author, it will always have the right to terminate agreements in the future, but more importantly it will not have to fear anyone else terminating the rights given to them. They don’t have to worry about a disgruntled ex-employee coming and claiming the rights to some iconic character thirty-five years later.
When someone asks for a work for hire agreement, that is what they are asking for: reassurances that you won’t come find them in thirty-five years and take back what you made.
However, for someone who is not an employee of the person paying them to make something be a work for hire and to give those reassurances to their client there are a couple of legal hurdles that need to be crossed. First of all, the agreement to make something a work for hire must be in writing. You can’t agree to do it on a handshake and you probably want something a little more formal than email. Second of all, it has to be specially ordered or commissioned work. Third of all, it has to be a kind of work specifically listed in the copyright law.
The third thing contains all of the action. Only “…contribution[s] to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.” That’s nine types of works that can ever hope to be considered as a work for hire. Everything else is out.
After looking at that list you can probably tell that all of those types of works are types of work that would fall apart if all of the contributors could somehow take back their parts. Once a film, say, hit 35 years old the studio that released it would have a real problem on their hands if every artist who designed sets or characters could put a stop to the movie ever being shown by threatening to sue. It would basically chop the copyright term in half.
Creators might have a hand in any of the works listed as potential works for hire. They could be creating art for use in a film, they could be writing the forward to someone else’s book, they could be contributing work to a book discussing various styles or they could be doing illustrations for a textbook. Creators might have a hand in drawing maps in at atlas of places either real or imaginative.
If a creator could take back their rights in the future, it would hobble the work in question. Even the threat of it ever happening might make the undertaking less attractive. A lot of clients do not like that kind of risk and that makes work for hire agreements useful as a way to give these collective works a longer shelf-life.
But since only nine things are specifically listed in the copyright law, that means that nothing but those nine things can be a work for hire. A corporate logo? It can’t be a work for hire. A poster? It can’t be a work for hire. A website? Maybe not a work for hire. The cover illustration for a book? No idea.
Stay tuned for Part III, wherein I give more concrete advice on how to deal with work for hire agreements.
If you can’t wait for Part III, why not spend some time learning a little more about how contracts work? You can start the process relatively easily by downloading and reading The Creators’ Legal Guide, a short and cheap e-book that I put together to discuss the legal issues that creative professionals need to know about.
Are you a creative professional that wants to know more about the law? No problem. We offer the Creators’ Legal Program to give you easy access to an attorney. It is $95/month and you may cancel whenever you wish.
