Work for Hire? Not sure what to do.

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.

Janette

You guys are so amazing, I really appreciate everyone's advice and input. You're all amazing!

krisblack

Hi @Janette, I suggest getting the book, Pricing and Ethical Guidelines Handbook. It contains lots of useful pricing information for lots of different industries including illustration and publishing you can reference to feel confident when coming up with your numbers. I've been using this book and the previous editions for years to help with pricing for work I've done. It's a great way to know what's common ranges in the industry you're doing work for. You'll need to use your best judgment to determine your monetary value as an illustrator. Good Luck!

https://www.amazon.com/Graphic-Artists-Guild-Handbook-16th/dp/0262542390/ref=sr_1_1

Janette

@krisblack cool! thank you. I will take a look

carlianne

@davidhohn regarding work for hire while working full time at a company - it has been my observation that those contracts usually stipulate that they own EVERYTHING you do during or after work hours wether done in house or not.

I've rarely seen that enforced by a company but technically they could claim ownership of your work done outside of company time.

I'm not sure if there is a different term for contracts like that or if it is simply just written that way

lpetiti

@carlianne I'm curious to hear more about the "outside company time" thing. I feel like that'd be hard to justify and/or enforce?

willicreate

@lpetiti said in Work for Hire? Not sure what to do.:

@carlianne I'm curious to hear more about the "outside company time" thing. I feel like that'd be hard to justify and/or enforce?

Look up the Bratz Dolls lawsuit.

Melissa_Bailey

@TaniaGomesArt thanks! (And I totally relate with the fear of rejecting work -- I think that's common for freelancers since often we don't know where the next project is coming from. In recent years, because of having a waiting list, it's been nice to be able to turn down projects that don't feel like a good fit. But now and then that old fear wants to raise its ugly head and has to be pushed back down!)

As far as where I got the info to build my contracts, first I did some research about the publishing industry and contracts, read a bunch of sample contracts shared by lawyers/organizations/fellow artists, and figured out what information I needed to include and what I wanted to include. (For US-based illustrators, I highly recommend a visit to copyright.org & also learning about legal requirements for your state, as the contract will be governed by the laws of the state you're living in. It's also highly recommended to have any contract you write reviewed by a lawyer who specializes in illustration and/or publishing contracts.)

Gonna basically repeat what @davidhohn said: it's so important for illustrators to educate themselves! Not only on contracts, rights, and copyright law but even the wider scope of the business of illustration and the market you want to work in. Because of this, I'm not going to provide a step-by-step guide, but will happily share some resources that got me started:

SCBWI (The Society of Children's Book Writers and Illustrators). Their guide The Book, which is updated every year, always contains a sample publishing contract along with "cliffs notes" that explain confusing or potentially exploitative wording.
What Should Go Into an Illustration Contract from the Business of Illustration blog run by illustrator/designer/art director Neil Swaab.
Contracts and Agreements under the Tools and Resources section on the Graphic Artists Guild website.
Standard Form of Agreement from the AIGA.

There is SO much more information out there! If you find a great resource in your search, please share -- personally, I'd love to see it! (And if you want to see my contract template to compare it with what you already have, feel free to send me a private message.) ️

Melissa_Bailey

@willicreate interesting! I'd noticed that the Bratz dolls quietly disappeared from stores for a while, but never knew why. Definitely a cautionary tale for artists -- know what you're signing!

TaniaGomesArt

@Melissa-Bailey-0 Thank you so much. These links are really helpful. I think is more than time that I start taking this legal part seriously and educate myself.

Yeah, you are right and I forgot to mention - I also became more able to lose that fear since I have steady work from a tabletop games company. And because of having my back covered, started to say no more often, and realised that the more I said no to what I didn't want, the more things I wanted started to appear. But is definitely harder when you don't know where your next paycheck will come.

davidhohn

@carlianne I would be interested to see the wording of a contract that actually states that.

But I can't say for certain a ridiculous clause like this doesn't exist. I have seen contracts that state the "rights are licensed in all forms now known or created in the future throughout the known universe"
My feeling is, "You want to publish my work in Alpha Centauri? -- Cool. Let's add a bunch of extra zeros to that licensing fee!"

But, for anyone reading this thread who decides to get a full-time in-house illustration position -- read your contracts! This would clearly be a negotiating point that could (and absolutely should) be crossed out.*

*Except in the case of the Bratz dolls. I'm actually sympathetic to Mattel on this one.
Carter Bryant made a product that directly competed with his employer.
If you are a shoe designer working for Nike, they are going to be understandably irritated if you design a shoe and then take it over to Adidas (here in PDX that is literally across the river)
What Nike shouldn't be irritated about is if you are a shoe designer who writes a picture book and has it published. The two markets don't overlap in any significant way.

As a full-time employee I would have no problem agreeing not to create a directly competing product. But I would not agree to letting the company own EVERYTHING I make outside of the office.

Janette

Hey, everyone. So, I think I've decided to take the WFH option. I am going to increase my quote, possible double it though. I will request that my name is on the cover and that I can use images for my portfolio. As a single income household, I really can't afford to turn it down. If I double the quote and they don't accept that, then I guess that's my answer.

I have 2 other books that are looking likely to happen too, BUT, you can't guarentee anything and if those fall through and I don't take this job, then Ill be kicking myself. On the other hand, of they all come through I'm going to (well, be exhausted for the next 6 months!!) be able to pay off some debt.

It's been so helpful reading everyones comments. This group of people are the best. So glad to be a part of it.

lpetiti

@Janette let us know what happens!

Melissa_Bailey

@Janette absolutely understand where you're coming from, Janette! It sounds like you're doing your due diligence and that usually leads to a good outcome. Please let us know how it goes.

Janette

Hey Kids! What is up!? (aside from the price of, well, everything!)

I've been insanely busy! Actually back to doing a bit of graphic design work to help out a former employer from years ago who needed extra help for a few weeks. BUT! I have an update on the WFH contract. They accepted my quote (which I doubled from my normal cost). So this weekend I'm putting a contract together. I am aware of the risks involved in selling my copyright, but the compensation is too good to turn down right now.

BUT! I also have 2 other books to do!!! Yikes! 1 for a small publishing company and 2 for self publishing authors. Crazy times ahead. I'm excited that 9 months into be 100% freelance, that I am not regretting making that decision, but also that I have plenty of work to take my well into next year. I'm still going to try and be involved here, doing the monthly challenges etc and I've barely even done any of the classes I signed up for!!!

Lots of drawing in my future and that's how I like it!

Kim Rosenlof

@Janette Congrats! Your work is great, so I can see why it is going so well.

Melissa_Bailey

@Janette congratulations! So very glad it worked out for you with this project, you're happy with the terms, and that you have more freelance work lined up! It certainly helps ease the uncertainty of freelancing. You're insanely talented; it's no surprise that you're finding work!

Janette

@Kim-Rosenlof Thats's so kind of you to say. Thank you.

davidhohn

@Janette In my opinion this worked out well for you.
One of the things about WFH is that typically the fee does not compensate the creator for the time energy and potential value of the work.

Doubling your fee certainly goes some way toward compensating you appropriately. I also like that it exposes how MUCH MORE money is actually available for given project.

Good luck with what sounds like a busy year!

Janette

@Melissa-Bailey-0 I'm a little worried how I'm going to get it all done. I don't want to get burnt out you know? It'll all be on my iPad. I need to make sure I sit properly!