I am doing a series on work for hire agreements, as they are something that creative professionals seem to have many questions about. In that series, I will be breaking down some of the law and hopefully make the issue clearer. This post serves a slight aside to discuss a potential danger that arises from using a work for hire agreement unnecessarily.
In California, at least, work for hire agreements have the potential to give rise to criminal liability. Let me say that again: criminal liability. Huh?
Well, according to California Labor Code §3351.5(c), an independent contractor who enters into an agreement that states that their work shall be deemed a work for hire can be converted into an employee, despite anyone’s proclamations otherwise.
That means, that as an employer, the person seeking the work for hire agreement has to pay workers’ compensation and unemployment insurance. Failure to do so might constitute a criminal act.
This touches on the broader point: understanding law is about knowing the law, but it is also about knowing when to figure out what you don’t know. Even though there are many good forms and do-it-yourself websites available, they do not (and legally, cannot) give the guidance that one would need to avoid the kinds of traps that I talked about above. Don’t get me wrong, sometimes templates have their place, but they can often be like prescribing your own medicine – the side effects may be greater than the problem you initially tried to solve.
I often tell my clients that the documents I provide to them don’t really have any value. The value comes from the legal advice that will tell you which document to use, how to use it, how to customize it, and any risks that are involved with that particular document.
Think of it this way: if you own a company and download a “work for hire agreement template” (google it now, you can easily get one) and then use it with a subcontractor, you may have just unwittingly created an employee. Getting out of that hole might take way more time, money, and effort than it would have taken to get decent legal advice at the outset. You might have read the form thoroughly and understood every word, but unless you are up to speed on California employment law, you would never have been able to predict the side effects.
None of the above is meant to be legal advice, nor is it an offer to provide legal advice or to form an attorney-client relationship. If you have a real legal issue, contact an attorney in your jurisdiction
