If you’re a creative freelancer and spend any time reading over your contracts, you likely come across the term “work made for hire” (or work for hire).
Here’s a sample legalese from a generic contract:
“You expressly acknowledge that the material contributed by you hereunder, and your services hereunder, are being specially ordered and commissioned by us for use in connection with [insert description of work]. The Work contributed by you hereunder shall be considered a “work made for hire” as defined by the copyright laws of the United States.
“Work Made for Hire” (or “Work for Hire”) is commonplace in freelancer contracts, yet the terms are often misunderstood, even misused. If you are a contractor or freelancer who produces original work for clients (or contracts others to produce original work for you), read on to learn more about work for hire and how it applies to U.S. copyright ownership.
Work made for hire is part of U.S. Copyright Law. Its purpose is to change the default right of copyright ownership. According to U.S. law, anytime you create an original work of art, you automatically own the copyright from the moment you create it. “Work Made for Hire” changes this dynamic: the person paying for the work is treated as the author and owns the copyright. This means they can use the work wherever, whenever and however they want to—even to resell the rights to someone else. And unless you have permission from the client, you can’t do anything with the work yourself.
Sounds simple enough—and it makes sense. After all, if someone is paying you to produce a brochure, article, graphic or video, they want to be able to use it as they see fit, as well as assume you won’t sell the same work to someone else.
However, there are some stringent standards for establishing what’s considered work made for hire, particularly when the work is created by a freelancer. According to the copyright statute, the commissioned work needs to fall into one of nine categories:
The work is considered work for hire if it falls into one of these nine categories—as long as that’s stipulated in the contract and both parties sign the contract. However, if the work doesn’t fall within one of these nine categories, then it’s not considered work for hire, no matter what the contract might say. According to Columbia Law School, many freelancer contracts contain broad clauses about work made for hire, even when there’s no legal basis to make that claim. They give some examples of these contracts here.
However, let’s face it. Many of the nine categories listed in the statute are vague. Newspapers and magazines are pretty clear examples of collective work, but what about an advertisement, annual report or company catalog? If you were asked to create an illustration for a company brochure, is that considered a contribution to a collective work?
The bottom line? You may not think that the work falls under one of these nine categories, but your client may argue otherwise in court.
In many cases, as a freelancer or independent contractor, you are producing work that you have no intention of using again, and have full expectations that the copyright belongs to the client. However, if you have any reservations about handing over full ownership, there are a few things you can do:
Like with any contract term, it’s always best to come to a clear understanding with the client before any work begins. Lawsuits and court battles typically aren’t a productive use of your time. Clarify the expectations with the client through a quick discussion to ensure everyone is on the same page. It will ultimately help you get the agreement you both want.