Work for Hire? Not sure what to do.

Melissa_Bailey

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.

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.