Friday, December 2, 2016

WORK FOR HIRE


Occasionally a publisher will send you a contract for an article or book that they are calling “work for hire.” Signing such a contract means you are giving away all rights to the material and that the buyer has full control. The rights will not revert to you after 35 years as they do when you sell All Rights.

This designation was intended to refer to material you wrote while working as an employee for someone else. Anything you wrote as part of the job is technically work for hire and belongs to the employer, not to you. They may or may not use your byline, because technically they become the author when you sign such a contract.

Some publishers attempt to use work-for-hire contracts in buying articles or books from freelancers, but that was not what the law intended, and you are encouraged not to sign such contracts. A work for hire is usually done by an employee, not an independent contractor—such as a freelance writer.

The exception is in writing something like curriculum material. That is often done as a work for hire since the publisher provides very strict guidelines, and the material is often used over several year’s time. Since this is not material that has any other potential market, it is acceptable to sign a work-for-hire contract for curriculum or other very specialized material. Ghostwriting also usually falls into the work-for-hire category.

A work for hire always has to be laid out in a written contract—it is never a verbal agreement—and it should be signed before the work begins. Be sure the contract specifies that the transfer of rights does not take place until the writer is paid in full. That way you won’t lose the rights if you are not paid. The contract should also specify whether or not you will be given credit as the author, and if so, how and where (size, type, and placement).

Who Owns the Copyright?

You may still run into editors/publishers who want to claim that a piece of work you do for them is work for hire if it is an assignment, and they are controlling the content. In any such cases, be sure to let them know you are not doing it as a work for hire, and work out the details of the sale before you begin.

A work for hire needs to meet certain criteria before it qualifies. Following is a list of the general criteria required:

  1. The source of the required “tools” used for the job. WFH can be argued if you are using their equipment to prepare the work.
  2. Place where the work is done. WFH can be argued is you do the work in their office.
  3. The length of the relationship between you and the publisher. The longer you work, the more likely they will claim WFH.
  4. Whether the publisher has the right to assign you additional projects. Usually you will be working on this one assignment and you will not be given additional projects while this one is in progress.
  5. Whether you or the publisher plans your daily work schedule. WFH might be argued if the publisher controls your time.
  6. How you are paid. If you are paid by the week or month as opposed to a lump-sum payment when the job is finished.
  7. Whether the publisher hires any necessary assistants or you do it yourself. WFH could be argued if the publisher hires your assistants.
  8. Whether your project is considered part of the regular work of the publisher.
  9. Whether the publisher actually is in business.
  10. Whether you receive employee benefits. WFH can be argued if you receive employee benefits.
  11. How your taxes are handled. If they deduct taxes like for wages, they could claim WFH.
















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