FAQ – Would you sign a work-for-hire contract?

Would I sign a work-for-hire agreement?

Sure. But be aware that story consulting is a service (UPDATE: I’m not currently taking any story consulting gigs. Thank you.), and work-for-hire contracts are technically moot when applied to a service. So, sure, I’ll sign it. But do you really want me to?

If you don’t know, work-for-hire is a term referring to work done for a flat fee. The worker retains no rights (copyright, trademark, film rights, publishing rights, licensing rights, etc.). No royalties are expected. No salary. No benefits. The employer doesn’t even have to give you credit for the work you do. Just the flat fee and that’s it.

It’s simple and black-and-white. Employers love it. And sometimes it’s great for the worker as well because they just want a quick job, a little cash and minimal mess. In this way, work-for-hire can be a really great thing.

The trouble starts when work-for-hire is used outside of its intended purpose.

Employers are only supposed to use work-for-hire when it fits within 9 criteria:

1. Contribution to a collective work (like a magazine or encyclopedia – individual parts collected to make a whole),

2. Contribution to motion picture,

3. Supplementary work (like a map) contributed to a work by another author,

4. A compilation (new arrangement of preexisting works),

5. A translation,

6. An atlas,

7. A test,

8. Answer materials for a test, and

9. An instructional text.

(Taken from Graphic Artist’s Guild Handbook of Pricing and Ethical Guidelines, edition 13, page 32-33.)

Unfortunately, because work-for-hire is so black-and-white (for a single flat fee, the employer owns everything), employers want to apply work-for-hire to anything and everything, including story consulting.

I’ve had a number of potential clients ask me if I’ll sign a work-for-hire agreement for my story consulting services. In those moments I have a dilemma because consulting cannot be defined as work-for-hire. It’s a service.

A friend of mine gave a good analogy: “Asking a consultant to sign a work-for-hire agreement is like telling a plumber, ‘I still own the pipes when you’re done.’ Of course you still own the pipes! The plumber is there to fix a leak, nothing else.”

If I were to sign, the agreement would be determined moot. But if I don’t sign it and offer a proper contract for a consulting service then the client gets confused (usually because their lawyers advised work-for-hire), or worse, upset. I’ve lost jobs because of it.

So, do I sign the contract and know that it means nothing? Or do I do the right thing and give an alternative option to the client that is legally binding?

The only work-for-hire contracts that won’t be determined moot in a court of law when applied to a service are the contracts that have a sentence like this:

If for any reason the results and proceeds of the services are determined at any time not to be a work for hire, the Worker hereby transfers and assigns to Employer all right, title and interest therein, including all copyrights…blah blah blah.

The above can be translated as:

Even if this work isn’t work-for-hire, you agree that it is.

(The sample was taken from a sample work-for-hire contract. And, here’s the kicker, it was for film work, which already is work-for-hire. See how eager lawyers are to protect everything under work-for-hire?)

So, will I sign a work-for-hire agreement? Sure. The advice I give is entirely in reaction to my client’s work. I don’t own the work that I react to, and in the contract I provide I make it clear that my clients own their expression of the ideas I share with them (the expression of the idea is the only thing someone can own, anyway).

The real question is: Do you want me to sign a work-for-hire agreement? Probably not.