You create the work, you own the copyright – it’s a fairly simple rule with one big exception; working for hire or working for someone else. You might be the actual author of the work, but if someone employs you then don’t be surprised if your employers claim to be the actual copyright owners of your work.
Working for hire is a unique but extremely common work situation where the actual author or creator of the work does not own copyright over his or her work. Instead, the employer or the person who has hired the artist owns all the rights in the work.
Hold on, didn’t you say you get a copyright over the work the instant you create it?
It’s true that you own the copyright over an artistic work from the moment it is created but the conditions involved in working for hire as against working independently differ greatly. This ends up having a big impact on copyright ownership for fairly obvious reasons. Imagine you’re an illustrator who has been hired by a large media company specializing in producing animation shorts and feature length films. Your artwork is the subject of most of their successful programming but while the skill is yours, you’ve created the artwork using the company’s financial and infrastructural resources – in fact, the company hired you to be an animation artist for them, so it’s kinda your job to produce good material for their films. In such a situation, the law sees it fit that the employer ought to own the rights in the work you’ve created, because it was largely possible because of the employer’s (in this case, the company’s) resources.
So any work I do while I’m employed by someone belongs to them?
No, only the works or pieces of art you create during the course of your employment, belongs to your employer. For example, if you’re a graphic designer working with an advertising company, the layouts and logos you create, while sitting at your office desk or for a company client, obviously belongs to the company. The logo you created for your fashion forward cousin interested in opening her own boutique – now that’s all yours (until of course you sell it to your cousin and assign the rights over it to her).
So it’s really clear – the work for hire exception only applies to work that is created during the course of your employment, and usually has a direct connection with what has been requested of you by your employer.
How is this any different from assigning or transferring your copyright?
It’s really important to distinguish work for hire copyright situations from those that arise from copyright transfer or assignment. The main reason being that in the former, the company or employer is considered the author of the work and so he, she or it owns all rights in the work and is thus free to do anything with the work in keeping with the four rights that arise as a consequence of copyright ownership (You can brush up on your Copyright basics here).
Besides these four rights, authors of a work have a very important, inalienable right known as a Moral Right over their work. Moral Rights are essentially about making sure that you as the author or creator of a work, get to protect the integrity of your work by having a say in the manner and mode of your work’s display, adaptation and distribution. Moral Rights also ensure that you get credit for your work, and that no one can wrongly credit you with work that might damage your reputation as an artist. Only authors get to have moral rights, and so it’s not a card that everyone can play. Moral Rights continue to vest in the authors of the work inspite of copyright assignment and transfer – so in the work for hire situation, the employer gets to claim moral rights whereas in a copyright assignment situation, the author or creator of the work and not the big company would be able to claim moral rights. This can play a huge role when you’re trying to defend yourself in an infringement suit, as Moral Rights constitute a very important point of contention.
So, why care about work-for-hire? How does that affect me as an artist?
If you are an artist working for hire, then you ought to know about the limits it imposes on your ownership of a piece of creative work – this way, you don’t waste time and resources on trying figure out who own what part of your work, and whether you can make a legitimate claim for the rest of it.
Let’s take an example – you write for a column that features regularly in a fortnightly magazine that benefits greatly from your work, and achieves an unexpected, unprecedented readership Many years later, the publishing house that owns the magazine want to come out with a limited edition book that carries a number of the column pieces written by you. They inform you of their decision to republish your writings, but do not actually take your permission or offer you any money in return for using your writing in this limited edition book. The book is a huge success and the copies almost immediately disappear from store shelves across the country – great news for the publishing house, but disappointing for you since you didn’t actually get to make any money or get much credit for your work! So you decide to take matters into your own hands, and you approach the publishers saying that they used your writings, the copyright of which you own – or do you? Thing is, when you wrote those pieces for the magazine, you wrote them in the capacity of being a staff writer hired by them, and because you were an employee just doing your job, the publishing house is the actual copyright owner of your written pieces. So now, you’re stuck in this strange situation where you can’t actually claim copyright violation or infringement, because you never owned the copyright in the first place!
So as you can see, ignoring work-for-hire copyright issues can lead to awkward situations where you might wrongly expect gains and returns or worse, assume to still own the rights to create a derivative work out of a work that you might have created with a lot of love and care, but clearly for someone else.
Is work-for-hire and its conditions on copyright non-negotiable?
Not really – like almost anything to do with intellectual property rights, you can negotiate and strike a deal over the retention and assignment of rights – meaning everything is open to negotiation. While some professional relationships fall under the work-for-hire category very clearly, others may require explicit mention of this in your agreement or contract.
So what do I need to remember as an artist?
If you want to keep the rights to your work of art, even while working with an employer then make sure that you negotiate and discuss the work-for-hire clause in your agreement with the person who is hiring you, or that you bring it up for discussion very clearly. Ideally, you ought to be discussing this before you commence work in order to minimize any heartache later. If you’re on the employer’s end, then make sure you fully understand the implications and rights inherent in a work-for-hire relationship so that you can avoid any unpleasantness in the future. Additionally, remember that in the work-for-hire situation, the employer or hirer has moral rights over the work and this right cannot be assigned and can only be waived.
Working for hire is a relatively common predicament most of us have to deal with, and understanding the basics of it might help you manoeuvre your way around any problems that you might face, but if there’s something specific regarding your current employment or any queries you might have, then feel free to get in touch with me via email or leave a comment at the end of this post.