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 II of this article, in which we understand the problem that the work for hire doctrine seeks to solve.
We have no idea about whether a lot of things produced today would fit under any of the types of work listed as possible works for hire because the work for hire provisions in the current copyright act are just now turning 41 years old (updated in 2019). That means that the first works eligible to be terminated were created in 1978 and only became eligible for termination in 2013. The Village People’s “YMCA” was among that first batch and ended up in court (the Policeman got the rights). In short, that means that the work for hire doctrine is only now starting to be tested.
We don’t know how courts would fit many types of creations under the work for hire rules. You might be able to take back the rights from the publishing company to a book cover you did thirty years ago or you might be able take back the logo you are working on today in the year 2039. It’s just not clear yet.
This uncertainty might be why the person hiring you to do a set of collateral might be insistent on you signing a “work for hire” agreement. But more likely, that person might equate “work for hire” with “ownership”, as in “I want to own my logo.” And the truth is, it might not matter that you even sign the work for hire agreement, if the thing you are assigning is not listed as one of the nine things. I am fairly sure that if you made a poster advertising coffee, you could still terminate any assignments even if the person hiring you had you sign a work for hire agreement.
In many written work for hire agreements or work for hire clauses in contracts, you may see language that says, essentially: “This is a work for hire, but if for some reason a court finds it not to be eligible as a work for hire, then the author assigns all their rights to me and if for some reason that assignment doesn’t work, then the author licenses everything to me as much as they possibly can.” The agreement tries to be a work for hire, but has fallback provisions if it’s not actually eligible to be one.
Where does that leave us? It leaves us considering what having something be a work for hire is worth, both to the designer and to the designer’s clients. It helps us better value any disputes over whether the designer will assign or license their work to the client or whether the client can claim the work as a work made for hire.
One final thing that I will point out before ending: the definition of an employee and the definition of an independent contractor blur into one another. We can think of clear examples of one or the other, but there is a large and hazy middle containing people who may be paid as independent contractors but come in to work every day with the other employees. Remember that anything created by an employee during his or her employment is almost always a work for hire, automatically. Know that the blurry definitions muddy the work for hire waters.
Even if the concept of work for hire seems a bit hard to pin down, understanding its origins demystifies it and helps the working designer to understand the impulse and actual purpose of the work for hire agreements that clients ask them to sign. Like many questions in law, the question of “should I sign a work for hire agreement?” does not have a single answer. Depending upon what everyone hopes to get out of the creative partnership, a work for hire agreement might be appropriate, or it might not.
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None of the above is meant to be legal advice, nor is it an offer to become your attorney. If you have a real legal issue, find and engage a lawyer in your jurisdiction.
