One of the questions I get most from working photographers is about the rules related to “works for hire” in copyright law and contracts and how to identify them. In this post, I want to shed some light on work for hire, and how you can best protect yourself in the market.
Copyright :: A Refresher
Being that this is my first blog post for ASMP, I thought I might do a (very short) refresher on the basics of copyright protections in the United States.
Copyright protection stems directly from the Constitution. In Article 1, Section 8, Clause 8, known as the “Copyright Clause,” the text grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Every time someone tells you that your copyright is worthless, you can remind them that your protections are derived from no less an authority than the Constitution!
In the intervening years, Congress has utilized the Copyright Clause to pass several pieces of legislation governing copyright, with the Copyright Act of 1976 being the most recent comprehensive piece of legislation. In future posts, I’ll discuss why the latest version of the Copyright Act is from 1976, what modernization has been tacked onto it, and why it’s in dire need of change.
As you know, Copyright law grants photographers and other creators of works a set of exclusive rights. The exclusive rights granted to a creator of a work under copyright law are: the right to make and sell copies of the work, the right to perform and display copies of the work, and the right to create derivative works. Each of those can be its own essay, but for now remember this: you own a copyright in the images you take from the second you press the shutter. You don’t need to do anything else to make it happen.
Registration of your copyright is a second step and is necessary to formally protect your copyrighted works, but the copyright itself is yours from the get go. That means that (generally) if someone wants to take it from you, you have to agree to it! Except…what about “works for hire”?? As you’ll see, if you are in a specific situation, you might never have the copyright to begin with!
Works for Hire :: An Introduction
In the realm of copyright law, “works for hire” is a term that refers to the general situation in which a creator of a work, who would otherwise retain copyright rights in the work, gives up copyright rights in the work. Rather, the employer or party who commissioned the work obtains these rights.
A work can be deemed a Work for Hire if a photographer is acting as an employee or as an independent contractor, but there are differences depending on which type of working relationship exists. Therefore, before describing the differences in its application, it is important to understand the difference, from a legal perspective, between an independent contractor and an employee.
Employee or Independent Contractor :: The Age-Old Question
Each state has its own laws with regards to how an employer/employee relationship is created versus a situation in which an independent contractor relationship is created. Generally, however, the fact that a person is referred to or has a contract using the term “employee” or “independent contractor” has no legal significance. Instead, courts will look at the nature of the relationship rather than rely on the nomenclature used by the parties.
Courts often use a set of factors to determine which type of relationship exits, with the most important factor usually being what level of control the principal has over the agent. The more the client can direct the photographer what to do and how to do it, the more likely a court would find that they would actually be an employee! Courts will also examine other factors, including where the photographer conducts his or her work and whose equipment the photographer uses.
As stated previously, the distinction between employee and independent contractor can be significant regarding the doctrine of “works for hire.” If a photographer is acting as an employee, then any works created by an employee within the employee’s scope of employment will be considered Works for Hire. However, even this can be overridden in an employment contract if the contract explicitly states that the employee will retain the copyright in any works they create.
But, if the photographer is acting as an independent contractor, then a work will only be a Work for Hire if (1) there is a written agreement between the parties stating that the work is a work for hire, (2) the agreement is signed by both parties, and (3) and the work falls within one of the nine following categories:
1. A work specially ordered or commissioned for use as a contribution to a collective
2. A part of a motion picture or other audiovisual work
3. A translation
4. A supplementary work
5. A compilation
6. An instructional text
7. A test
8. Answer material for a test
9. An atlas
Thus, in these situations, the photographer will have no rights to the exclusive rights that would otherwise remain with the photographer, and the employer or commissioner of the independent contractor will instead have these rights.
It is important to note that when acting as an independent contractor, the language in a contract that can divest a photographer of his or her copyrights rights is not always so obvious.
A contract can accomplish this by containing just one or two relevant sentences that do not even necessarily need to contain specific words like “copyright.” Therefore, it is critical that photographers carefully read and review any contract proposals in their entirety and look for any language that may appear to grant copyrights in the work to the other party, even if specific terms like “copyright” are not used.
Alternatively, an independent contractor contract that specifically reserves the copyright to the photographer or is silent as to who holds these rights will result in the photographer retaining the usual exclusive copyright rights. So, the first-place photographers can protect themselves when entering an independent contractor relationship, and the first place a photographer should look to determine his or her rights, is in the contract.
When a work is deemed a Work for Hire, this is generally a bad thing for a photographer because it will cause the photographer to lose personal copyright in his or her work. In employment situations, it can often make sense to agree that photographs will be Works for Hire. Think, for example, a photo shoot for a specific product with a defined scope that is not independently commercially salable. However, it is often less fruitful in scenarios in which the photographer is acting as an independent contractor. In the end, photographers should be wary of Work for Hire situations, and generally avoid them unless the financial incentives outweigh the downside to such situations.
Photographers can always protect themselves when acting as independent contractors (or even when acting as employees) by having contracts that explicitly state that they will retain copyright rights in any works they create. Remember, the contract will almost always control the nature of the rights between the parties. If the other party provides a contract, then also remember that you do not have to sign it if you do not want to and that it is always negotiable.
Bottom line: if you are shooting, you are in business, and businesses require contracts. Whether you write it or they write it, make sure there is a clear statement of who will own the copyright to the images produced. If the contract is silent, write it in yourself! Take action in advance and you’ll never have to call my office for a bad “work for hire” experience!
Thomas Maddrey is the founding partner of the Maddrey PLLC law firm, a company dedicated to helping creatives protect their rights and succeed in their businesses. Prior to attending law school, Tom was a commercial photographer and has been a member of ASMP for over 15 years. He is excited to bring some clarity regarding legal issues to the membership of ASMP, and remember you can always contact him at email@example.com or visit his website at www.MaddreyPLLC.com.
Photo credit: © 2017 Maddrey Focus LLC