Work for Hire? Not sure what to do.

Melissa_Bailey

@Janette many, many, many self-published authors nowadays are demanding full rights to artwork when they hire an illustrator for their book. One reason is because of sites like Upwork and Fiverr, which used to operate solely on a work-for-hire basis so that's what clients have come to expect (the majority of self-published authors hire illustrators on sites like Upwork and Fiverr). Another reason is that's what self-publishing coaches encourage self-publishing authors to do. The authors themselves might not know what rights they actually need to purchase. This doesn't describe every self-publisher (I've had quite a few clients who were awesome to work with) but it is common.

Most of the time, we shouldn't enter into a work for hire agreement or give away our copyright. But there are situations where an artist might agree to a work-for-hire job.

Is this a project you really want to work on? Are you ok with giving away all rights to your work -- for the right price? Will you be credited as the artist in the book? Will the client give you permission to show the work in your portfolio? Will the artwork be so niche for the project that chances are it will never be used for anything other than that particular book? Does this seem like it would be a fun project and a good client to work with?

If you answered 'yes' to these questions, there may be a reason to consider entering into a work for hire agreement -- again, for the right price.

In a similar situation, this is what I do: I give them options. In my proposal, I lay out different prices for different approaches and pagination for the book, and what that would cost if the client were purchasing reproduction rights, and then what that would cost if the client were purchasing all rights to the work (or work for hire). No matter how the client chooses, I've priced it so I'll be happy with whatever option they pick; the ball is in their court. Usually, the client crunches the numbers, does some research of their own, and comes back agreeing to purchase reproduction rights. (This doesn't happen all of the time -- sometimes they're staunch with wanting full rights to the artwork, and if there are any red flags that start waving during these conversations, it's time to bow out.)

But then the question pops up: if I'm willing to work in a work-for-hire situation or willing to sign away my copyright to a client, how much more should that cost? I came across this article that helped me determine how I'd set my prices when asked to work for hire or hand over my copyright to the work (hint: I increase my price by at least 50%, and often double it). This is another good article you may find helpful. Anoosha Syed also has a great YouTube video where she explains how to price artwork. Super informative.

Hope this helps! Let us know how it turns out for you.

Janette

@Melissa-Bailey-0 Thank you so much for taking the time to reply so thoroughly! I really appreciate it. I believe thay are educating themselves well and even joined the SCBWI. They said they had conversations with people saying that work for hire was a common occurrence. I just want to make sure I know what I'm getting into and not go into anything blindly.

I suppose the main thing is, what if their story takes off and the characters become licensed. Long shot, I know, but IF that did happen, I would basically lose out financially on that. So, it makes sense that the quote I would give them would need to be a lot more than if I were to retain copyright.

Thank you again for your insight!

lpetiti

@Janette I'd be curious who has told them that work for hire is a "common occurrence." In my experience, while it does happen it's certainly not the norm. That sounds fishy to me.

They're self-publishing so the cynic in me says that the chances of their characters/book taking off is slim at best. In my opinion, it's never worth it to sell your copyright.

Janette

@lpetiti I wondered that myself. Seems like Publishers or companies would be more likely to do a work for hire thing.

If I'm not going to accept it, I need to be sure that I can explain my reasons why.

Melissa_Bailey

@Janette you're so welcome! In your conversations, you could ask them their plan for publication and marketing (I do it all the time and no one has objected so far). It will give you some clues into their level of experience and the likelihood of their book finding success.

Most self-published books sell less than 500 copies in their lifetime, so you're correct, the likelihood of their story taking off is slim. Unless they know the market and know how to market their book -- in that case, they may have a chance.

As far as work for hire being a common occurrence, it often depends on who is doing the hiring. But for the most part, yes, it is common for self-publishers to want to own the rights to the artwork. In my experience, most who approach me for quotes or pricing assume that they're buying the artwork or will own the rights -- this happens so often that I have made a pricing sheet that clearly states what the prices include and what rights they're purchasing. So many times, authors have been disappointed when they find out that I'm not giving away my copyright and we have a discussion, at the end of which they're still disappointed but satisfied with the explanation and we proceed. (Or sometimes, it's been a deal-breaker for them and they continue their illustrator search.) Not everyone will have had this same experience, but yes, I've found that most self-publishers want to hold the copyright to the artwork.

Janette

@Melissa-Bailey-0 Oh that's great advice!

Melissa_Bailey

@Janette and just going to reply to your reply to @lpetiti -- if you're not going to accept their work for hire terms, you don't owe them an explanation. You can politely but firmly state that you don't sign away the copyright to your artwork. If they want to work with you and accept your terms, great, if not, then wish them well and stick to your guns.

Janette

@Melissa-Bailey-0 Will you call them for me?

lpetiti

@Melissa-Bailey-0 I was about to say the same thing about the explanation. I think people have this idea that they are always owed a reason when the answer is no. The truth is, Janette you don't owe them anything, and even if you did feel like you wanted to explain, you have your reason. You don't want to give you the rights to your work, or you prefer to not do work-for-hire. If you're worried that you might not get any work after this, or that this is the only job right now, keep your chin up! I love your work, more work will come in and from clients who would respect your right to not give up a copyright, if that's what you really want.

chrisaakins

@Janette I researched this recently, believe it or not.

Work for hire does not mean benefits. Its more of a 1099 thing. But mostly it really comes down to the type of artwork you are doing and industry you are doing it for. When I did illustration work for a TV production company the work I was doing is considered work for hire BY LAW. Weird. When I do logo work for NEPA (an online e-sports league) I also do work for hire. But typically work for hire would not include illustrations for books. With both of those clients, they agree to let me use the artwork for self-promotion in my portfolio. That might have been been a deal-breaker for me otherwise (but maybe not since I really enjoy the work).

Is that helpful?

Melissa_Bailey

@Janette

Nope!

(Actually, that conversation is best had over email, so you both have a written record to refer back to.)

Melissa_Bailey

@lpetiti absolutely! Well said!

@Janette your work is gorgeous, stay true to yourself. Work will keep coming in!

carlianne

From my understanding, Work for hire doesn't mean you're an employee, it just means the work you make is owned by the person doing the hiring. This means you won't retain ANY rights to it. For example you wouldn't be allowed to show it on Instagram or your portfolio unless it's written into the contract that you're allowed to do so (usually after it's been published).

Work for hire is very normal in freelance business so you can still take any other jobs.

Although it isn't common in traditional publishing I have seen a lot of self published authors request work for hire contracts. From my personal observation it's not uncommon in the self publishing world. It does make things much less complex for the author.

Personally I'm not sure I'd even trust a self published author to be financially keen enough to share royalties anyway - but that's just me!

Janette

@Melissa-Bailey-0 lol yeah, I need to put my big girl pants on and deal with it

Janette

OK, so here's a question then, should they put togehter the contract - once I give them a better quote for work for hire? Who's reponsibility is that in this case? I've always done it before with other authors.

lpetiti

@Janette You have the right to negotiate your contract always. If you don't think their quote is what you need, then you can counter.

Melissa_Bailey

@Janette anyone can supply the contract. In traditional publishing, the publisher usually supplies the contract. In self-publishing (again, because what @carlianne said, most authors prefer to keep things as simple as possible) most of the time the author asks for a contract from the editor/illustrator/book designer.

In 11 years of freelance work for self-publishers, I think an author has supplied the contract only once or twice. While it makes more work for you, the upside is that you can word the contract how you choose and make sure that terms are fair for you. In my template folder, I've written templates for a standard usage-rights contract, work-for-hire contract, book design contract, hourly work contract, etc. Then adjust for the specific project specs and deliver to the client for review. Makes things go much more smoothly (for me, at least!).

If it does turn out that you agree to work for hire, the contract is SUPER simple because you're giving everything away -- the only things that need to be stated are the terms of the work, the price, the timeframe, what will be delivered and that all rights will belong to the author upon payment in full. (Oh, and if they’re going to allow you to show the illustrations in your portfolio, that needs to be in the contract too so you have written permission.)

jdubz

Work for hire isn't always 1099, but it IS always assumed ownership is retained by the employer, not the creator. For example, Marvel hires both contract work and uses full time employees, but all of their work is considered work for hire so that Marvel retains 100% of the rights.

The last contract I had put together (and they ended up not having the money for any of it so it went nowhere lol) I had 3 options. The first was the cost of the illustrations licensed for what they were going to use it for only, the second was a royalty based cost split where there was a reduced upfront cost, and the final one was complete rights for I think was something like 8x the first option's number.

I honestly was uncomfortable doing that and I'm glad it didn't go that way because you never know what is going to happen. This was a brand new author that had never done anything, but how much would it suck if you signed over all the rights to a world and a bunch of characters to someone for even something respectable like $20,000 to find them as a part of a successful cartoon or graphic novel series a few years later? The odds are slim, but crazier things have happened

TaniaGomesArt

First of all, I would like to thank you all for everything said. Super interesting and constructive conversation, learned a lot.
Now, some comments:

@Janette When you said you didn't want to reject work, I saw myself some years ago. But there was one thing I learned: we sometimes underestimate the power of no. This is how I see it now, when you say no to something you don't want, you are opening space in your life to what you really want. But if you say yes to everything you don't want, then the thing you want may come to you and you won't be able to take it. And sometimes, you really need to say no to something so that what you want appears in your life. So, as @Melissa-Bailey-0 said, start by seeing if your answer is yes to all those question she put. I was super afraid to say no to work, but now I'm more into being picky in what I accept. I got tired of dealing with a lot of stuff and am always attentive to red flags.

@Melissa-Bailey-0 As always, amazing answers!!! I would like to ask you where you got info to build your contracts. I have some basic contracts done for my fantasy maps commissions, and used as a base some contracts delivered by clients that seemed really good contracts relating the artist. Normally there's the limited licensing (rights to use in the game or book), the commercial license (allows to sell the map on it's own, digitally or printed), and full rights license. I am however curious to know how to make a good contract for a children's book, if they would be similar to these 3 I have.

davidhohn

@Janette I saw your message, and see that you've received a number of replies to your OP.
I am a huge fan of illustrators understanding the concept of Work For Hire (WFH), and then based on that understanding, deciding if they wish to agree to it or not for a given project.

I encourage all illustrators to read and understand the copyright law in their given country. In the U.S. it is Copyright Law of the United States (Title 17)

An important concept to understand about WFH is that when you agree to transfer your copyright the client now becomes the legal "author" of the work. From a legal standpoint you did not create the work, the client did. The client, as the author of the work, had no obligation to give you a credit line. The client now controls ALL the aspects of copyright, including the sole ability to distribute and profit from the work for 95 years after it is published (or 120 years from date it was created)

Work For Hire is a very specific term that is defined in Title 17. Check out Section 201, subsection b.

I briefly explained during the conversation that the illustrator maintains the copyright of their work, but sells the rights to use the images to the author and it would be laid on in a contract

Fundamentally correct, but I would encourage you to alter the word "sell" to "license".
"Sell" implies a transfer of ownership. While "license" implies renting the rights to the client for a limited amount of time. Check out this article from the Graphic Artist Guild To Sell or to Rent: The Difference Between Copyright License and Transfer

As I understood if, work for hire means that you have benefits and are basically an employee.

Yes and no.

It is true that most illustrators who are full-time employees of a company have signed a WFH employment contract with the company they work for. But legally it does not HAVE to be that way. That is, there is no specific U.S. law that says: "All work created by full-time employees MUST be created WFH". It is simply much easier (and potentially profitable) for the company to own all the intellectual property created by their employees, during work hours, on company property, using company tools and materials provided and paid for by the company.

But in theory if the company wanted you and your creativity badly enough you could say that "Everything I make every second Thursday of the month is not WFH. I license that work only for the time that I am fully employed by the company". It would be unusual, but not impossible.

My feeling with full-time employment and WFH is that it is a reasonable trade off.
As I mentioned earlier as a full time employee you make work from 9-5. At 5pm you stop working.
You make artwork in a building the company pays rent on. The company heats and cools. The company provides water, gas, and cleaning services. You work on a computer the company buys, uses a phone and phone service the company pays for etc. etc.
But most importantly, if you come in to work one day and there isn't a project for you to work on -- you still get paid an hourly rate and get insurance and benefits!

For all this the agreement is: all the intellectual property (IP) you created during the 9-5 you are in the company's building using company supplies, the company owns the IP.

Now, when it comes to freelance my opinion on WFH flips completely.

All that stuff the company pays for, well as a self-employed freelancer YOU pay for everything.
If you come into your studio and there isn't a project to work on -- you don't get paid that day. Oh, but you still pay for all the materials, utilities, insurance etc. etc.

There is little to no reason for a client to need to own the copyright to the original IP a freelance illustrator creates. As a freelance illustrator I personally recommend maintaining control over all your copyrights, and only licensing limited, specific rights. Licensing the client specific rights for a specific amount of time will allow both the client and the illustrator to be successful.

Of course it would be easier and more convenient for the client to own the copyright to your illustration (IP). And the only way for a client to own the copyright to your work is for the illustrator to sign (you can't do a WFH transfer verbally) a WFH contract. But like all things that are convenient -- a WFH transfer of rights is, and should be, extremely expensive.

I think of it (roughly) like this:
A pie company is just starting up. They want to deliver those pies to clients all over the city, but they don't have a delivery truck. They do have a small budget to rent a truck for a week. And in that week ideally they will generate enough money to make more pies and rent the truck again to deliver them.

Yes it would definitely be MUCH more convenient and easier for the new pie company to own the truck. But buying (WFH) a delivery truck is very expensive. Renting (licensing) the tuck successfully accomplishes what the startup company needs right now to be successful.

This analogy is imperfect because a vehicle loses value with age, while the more an image is promoted the more valuable it becomes -- but hopefully you get the idea.