Contractually speaking, companies have found a number of ways to circumnavigate having to pay photographers for additional use of their images.  In the ugliest instances, they also manage benefit by reselling the photographer’s images without any further compensation to the photographer.  Although there are a number of ways for this to occur, one of the most commonly recognized forms of a ‘rights grab’ happens by way of a ‘Work For Hire’ clause. 

Work for Hire is a very narrow exception to the general rule that a photographer who creates an image owns the copyright to that image.  Photographers shooting under Work for Hire arrangements are not afforded ownership or authorship in their work.  Instead, those rights are transferred to the company commissioning the photographs.  Work for Hire can occur in two ways: first, when there is an employer/employee relationship; Second, when their is a contractual agreement stipulating Work for Hire **and** the work being created is for one of a short list of things that the law recognizes as areas where work for hire can apply.  Collective works, including magazines and newspapers, are on that list. (for a detailed set of areas where work for hire is applicable, see http://www.copyright.gov/circs/circ09.pdf)

Under the circumstances of an employer/employee relationship, Work for Hire seems like a reasonable deal.  Good employers generally provide ample benefits in exchange for the work they receive from their employees including salary, retirement accounts, health insurance, sick days, paid vacation, bonuses, and other perks.  Regular work for regular pay offers the kind of stability and security that is, in and of itself, a huge benefit for anyone working in the creative industries.

However, under the circumstances of freelancing, Work for Hire becomes less of a reasonable deal and more of a cynical way for companies to manage overhead at the expense of the people who provide the component pieces for the product that they sell.  Unlike employees, freelancers must provide their own equipment, insurance, and retirement.  Sick days and vacations become an expense along with things that are easy to take for granted like office space, transportation, utilities, etc.  In short, Work for Hire wants to treat you like an employee without incurring the hidden costs of having you as one. 

As discussed in previous posts, our longevity as photographers depends on a business model that licenses images for specific uses, within specific geographic areas, and for a specific terms of time.  As we move forward in our careers, old images get added to our virtual stockroom and can be licensed and relicensed in the form of stock.  Licensing imagery is part of the long-term model that affords self-employed freelancers the ability to cover expenses that are otherwise left to an employer.  These images accumulate, become a tangible asset, and provide an additional revenue stream to help cover our hidden costs.

When you sign a Work for Hire agreement, you are essentially signing over your future revenue stream to another company.  Let that sink in…        …. Ok, got it?  Good.  Generally speaking, unless the contracting company makes additional provisions, Work for Hire also restricts your ability to use the contracted images for self-promotion, including showing them on your website or in your portfolio.  Remember, under Work for Hire, you’re no longer the owner of your work nor its author.  

To illustrate this point, let’s revive the rental car analogy about how photographers license images.  To recap that post, it’s sometimes helpful to think of your images as being like a rental car.  When an image is licensed, just like when a car is rented, the price is determined by the intended use, timeframe, and geographic area where the car –or images –will be used.  The renter, just like the licensor, doesn’t purchase the item they want to use.  They pay a fraction of the purchase price to use it under the constraints set forth by the agreement.  Under this system, they get the use that they require for a price they can afford.  In other words, the deal is fair.

The deal would not be fair if, as is the case with most editorial Work for Hire-styled agreements, the car renter actually received the title to the car for the price of a rental.  

Personally, I think that when a client hires you for reasons unrelated to the quality of the product you produce (for example, simply because you will sign a Work for Hire agreement or because you’re the cheapest person available for the work), you have a deal that has no long-term viability.  That client has no interest in photography; they are interested in a warm body who can press a button under the worst terms or at the cheapest price.  The same client will drop you in a heartbeat for another photographer who is cheaper or will work under worse terms.  These kinds of deals are lost causes.  

The dilemma occurs when you have an editor or a buyer that really believes in photography but is otherwise constrained by the crappy contract their legal department has developed and asked them to hand out.  This is not a lost cause and positively a good reason for you to get on your negotiating hat.  If the buyer is looking at you because of the quality of your product and/or a basic belief in the value of good photography, it’s time to help give them the words they need to have a convincing conversation with their legal department.  And, for this talk, there are really two primary selling points.  One is a bit idealistic, the other is pragmatic.  One speaks to the buyer who values photography, the other speaks to the legal department that values results.  Here goes:

1.  Idealistic: The work you do as a photographer is something that develops over time.  Work for Hire undercuts your long-term viability as a business by taking away future revenue streams that you require to continue producing the caliber of work that the potential client has come to appreciate.  Creative development is a function of opportunity.  Opportunity is, unfortunately, a function of your pocket book.  If the potential client truly values your product, they should have an interest in seeing that you will be able to continue producing it.

2. Pragmatic: The client can get the same results without a Work for Hire clause.  Typically, the client knows how they want to use your images, meaning you can price out a license that suits their foreseeable needs.  Their legal department is concerned with unforeseen future uses, times when they may want to use the images for something else but are afraid that their urgency will put them in bad position for bargaining when it comes time to price out that use.  From the lawyer’s perspective, it’s just easier to get all the rights so there will be no future hassle.  There are a number of ways to answer this concern including licensing the images for longer periods of time or writing in an option that pre-arranges the price of future sales (this is a topic better left for another post, but you get the idea).  

The bottom line is that, when it comes to Work for Hire, if the price being offered is lower than a career’s worth of potential revenue and the deciding factor is only whether or not you’ll sign the contract, it’s a bunk deal.  If the buyer values your work, there’s plenty of room to help them get it without the ugliness of Work for Hire.

In the next post, we’ll take a look at a Work for Hire clause or two and do a little dissecting.  

For additional information on Work for Hire, please check out the following sites:

1.   The Professional Artist’s League –Stop Work for Hire

2.  U.S Copyright Office –Circular 9

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Matt Slaby is a Colorado-based attorney (and photographer). Matt attended the University of Denver College of Law on a full public interest scholarship. His experiences in law school include a PILG clerkship for ongoing civil work with El Centro Humanitario’s legal clinic as well as handling wage claims and contract issues for DU’s Civil Litigation Clinic. He is a founding member of Luceo and, in addition to his photography, brings his legal background to the organization. Questions, comments, and ideas for future posts are welcome. Please add them to the comments section or reach me here: mattslaby@luceoimages.com

**DISCLAIMER: Luceo Images LLC and Matt Slaby assume no liability for the information provided above. This information may not be correct when applied to your specific situation. Moreover, the information provided is not intended to create an attorney/client relationship and shall not be construed as legal advice.