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Works for Hire and Texas Freelancers: If It Ain’t in Writing…

"For hire" by Petria Follett [Freeimages.com Content License (http://www.freeimages.com/license)], via Freeimages.comCreative people—writers, graphic designers, illustrators, videographers, animators, puppeteers, and so on—account for a substantial percentage of the freelance community. Mind you, this is not to say that freelancers in other fields—strategists, consultants, and so forth—are not “creative,” but rather that a typical work day for them might not result in one or more distinct “works” in the same way. The types of freelancers I describe as “creative” produce distinct works such as blog posts and other written content, logos and other designs, and video productions. These are works that the client and/or the freelancer can use in contexts other than the one for which the client specifically hired the freelancer—and there, my friends, is the rub.

Once the job is complete, and the product is handed off to the client, does the client own the copyright to that work in its entirety, with the freedom to use it wherever and whenever the client wants?

Well, um……..it’s complicated.

First, we need to know if the product (the writing, drawing, design, code, etc.) was a “work for hire.” In the typical freelancer-client relationship, the final product of a job is not considered a work for hire.

Let’s start with the basics:

What Is a “Work for Hire”?

I now turn to the source from which all other copyright law flows, the United States Code:

A “work made for hire” is—

  1. a work prepared by an employee within the scope of his or her employment; or
  2. a work specially ordered or commissioned for use as a contribution 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire…

In slightly-less legalese, a work for hire arises in two situations:

  • If you are an employee, and you produce something in the course of your employment, then it is by definition a work for hire that belongs to your employer. In some cases, an employer may even be able to lay claim to inventions and other works that an employee creates in their spare time, if it is sufficiently related to the work they do for the employer. (That’s for another blog post.)
  • If you are not an employee (i.e. an independent contractor), then you retain the copyright to the work unless (1) you and the client expressly agree otherwise in writing, and (2) the work falls under one of the nine categories described in the statute (“a contribution to a collective work,” etc.).

The client has a license to use the work for limited purposes—specifically, whatever purpose it had in mind when it hired the freelancer. How do you know if the client is going beyond the scope of this license? Like I said, it’s complicated, and I get into that later on.

Characterizing the Employment Relationship

"You are hired!" by geralt [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayA troubling trend in employment law is the tendency of employers to classify their workers as independent contractors instead of employees, often in order to get around laws regarding minimum wage, overtime, sick leave, and so on. Where creative works are concerned, however, you want to be an independent contractor instead of an employee.

The distinction between “independent contractor” and “employee” can be complicated, and the details vary from one state to another. The “common law of agency” applies in the copyright context, according to the U.S. Supreme Court’s 1989 ruling in Community for Creative Non-Violence v. Reid.

In Reid, a charity organization commissioned a sculptor to create a statue that it could display at a Christmas pageant in Washington DC. The sculptor worked from suggestions provided by the charity, and members of the charity routinely checked on the sculptor’s progress. The charity paid him in full upon delivery of the completed statue. No one disputed the charity’s ownership of the statue itself, but after the pageant, both parties filed copyright registrations.

The Supreme Court, applying the statutory definition of a “work for hire” discussed above, found that the sculptor was not the charity’s employee, that they had no express “work for hire” agreement, and that the statue did not fall under any of the categories of “specially ordered or commissioned” works identified in the statute.

It then identified factors to consider in determining whether the creator of a work is an employee or an independent contractor, including:

  • The employer/client’s “right to control the manner and means by which the product is accomplished”;
  • The level of skill required to create the work;
  • The “source of the instrumentalities and tools”;
  • Whether the work is performed at the employer/client’s place of business or at a place of the creator’s choosing;
  • The creator’s degree of control over their own hours of work;
  • Which party is responsible for paying the creator’s assistants and subcontractors (if any); and
  • Whether the employer/client handles the creator’s payroll taxes and/or provides employment benefits.

Very few freelancers and clients are likely to have any doubt about whether an employer/employee relationship exists or not (usually not), but these criteria are still generally good to know for a variety of situations.

Copyright Protections for Works for Hire

Under the Copyright Act of 1976, copyright protection for works created after 1978 lasts until seventy years after the author’s death. Copyrights in works for hire have a different duration, however, since the original copyright owner might be a corporation, with no individual identified as the author. In that case, seventy years after the death of the author is basically never. Work-for-hire copyrights expire 120 years after the creation date or 95 years after the original publication date, whichever is sooner.

The Work-for-Hire Clause

"For hire" by Russ London [CC BY-SA 2.5 (http://creativecommons.org/licenses/by-sa/2.5)], via Wikimedia CommonsA client might intend for a work to be a work for hire, and might tell you up front. On the other hand, they might intend it, but have no idea that it has to be in writing. This might be a good thing to clarify at the beginning of the freelancer/client relationship, but I’m not here to tell you how to run your business.

If, for whatever reason, you want the job to be a work for hire that the client owns in its entirety, sample contractual clauses abound on the internet, or you could ask a lawyer (please see my disclaimer below, and don’t ask me to draft any contracts for you kthxbai!).

In the absence of a work-for-hire clause, you retain the copyright to whatever you create, and the client owns whatever physical form of the work you give to them. The client has a license to use the work for its intended purpose. That’s where this gets complicated…

Who Has What Rights in the Absence of a Work-for-Hire Clause?

How do you define the “intended purpose” of a work, which determines the scope of the client’s license? There is no simple answer to this question, and there is no particularly simple way to address this in advance. The best way to explain it is to offer a few examples:

  • A client hires a freelance writer to write content for their website, with no work-for-hire clause. The freelancer writes multiple pages, and provides blog posts on an ongoing basis. The work goes onto the client’s website, where it helps the site to get a high ranking on Google and all that SEO stuff. Months later, the freelancer learns that the client has compiled the blog posts and webpages into an eBook, which it is selling on Amazon. This arguably violates the freelancer’s copyright.
  • A graphic designer creates a series of brochures, leaflets, flyers, and other print media for a client’s marketing campaign, which it intends to run for four to six months in the city where both the client and the freelancer are located. About a year later, the client uses the same designs to create new print materials for a different marketing campaign. The freelancer would be within their rights to send a cease & desist to the client.
  • A client hires a developer to create software to manage the client’s inventory and payroll. After an employee of the client, at the client’s direction, makes a few cosmetic changes to the code, the client provides the software to an affiliated business to use for its payroll and inventory. This most likely violates the developer’s copyright regardless of whether the client charges the other company for the software.

The best way to nip issues like this in the bud is to specify the purpose of the project, and the authorized uses of the product, in your contract with the client.

You all use written contracts with your clients, right?




Don’t make me come over there…..

Limitations on the Freelancer’s Use of Their Own Work

If your create a work for a client, and it is not a work for hire, your retention of the copyright does not necessarily mean that you can re-use that work anywhere else that you want. Again, this is highly dependent on the context.

The freelance writer I describe above, despite owning the copyright to the text he created, might not be able to re-use the exact same text elsewhere. Doing so could interfere with the client’s SEO, which would harm the client’s interests. The freelancer’s rights in that case are limited to having a say in any other use of the text by the client.

See also: Works Made for Hire (PDF file), U.S. Copyright Office, September 2012

Coming soon: Trademark law, defamation and how to avoid it, the right of publicity, plus all the ways I manage to keep mentioning software without actually writing about it.

Photo credits: “For hire” by Petria Follett [Freeimages.com Content License], via Freeimages.com; “You are hired!” by geralt [Public domain, CC0 1.0], via Pixabay; “For hire” by Russ London [CC BY-SA 2.5], via Wikimedia Commons.

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