What is work made for hire? What does copyright law say about work made for hire and copyright ownership?
Disclaimer: As always, I am not a legal professional, and this is not legal advice. Talk to a lawyer if you need legal advice.
Let me explain by way of examples.
Todd goes to a state park and takes photographs of the wildlife, the sky, and rock formations. He then licenses those photos (sells someone the right to use them in a calendar, for instance). He owns the copyright to those photos as the creator of them; he retains the copyright—he does not sell the copyright as part of the deal. He took the initiative to go out into nature and take those photos. He might license them to a number of people but he keeps the copyright. Even if he sells the copyright to some of the photos, this is not work made for hire.
Shane works for a local newspaper. He takes photographs and the newspaper owns the photos. He is an employee. They hired him to take the photos as part of his job working for the paper. This is work made for hire.
And now, for the confusing part.
Justin is a wedding and portrait photographer. Families hire him to take their photographs. He charges a high sitting fee, plus a fee for each photo taken, and then he charges a license fee. That’s right. If they want to use the photos in their home (or anywhere else), they have to pay him every year for the right to keep using those photos in their home.
He retains the copyright forever, even though they hired him to take their photograph. So not only does he make his money at the time the work is done, like everyone else does, he keeps making money off of those clients every year, for life. What a racket! What’s worse is that he has all of the other photographers in his area doing the same thing, so photography customers have little choice but to pay licensing fees each year.
Some photography should be work made for hire
Portrait photography should be work made for hire according to common sense, because the photographer has been commissioned to do it, but under copyright law, it has to be specified in the contract that it is a work made for hire, otherwise the photographer retains copyright. The only reason most photographers would want to retain copyright on any given portrait is so he can create brochures and other promotional materials that showcase his ability and his past work. Many photographers retain the copyright just for that purpose.
But then you have Justin. He’s a vampire, and wants to suck every bit of money out of his clients that he can, so he uses the law to do it.
Most photographers would never dream of demanding an ongoing licensing fee, like Justin and his pals have the nerve to do. He legally has the right to do that, but it’s almost unheard of. Any potential client with any sense will walk away and hire someone who is reasonable. With any luck, there will be photographers in their area who aren’t like Justin.
Transfer of copyright
Before you hire a photographer, ask about copyright. Ask what you are buying, and be clear that either A) you are buying the copyright to all of the images, B) you are allowing the photographer to use the images in promotional materials but you also have the right to do whatever you want with them, for this one fee, for life, or C) that it is a work made for hire, and if there’s any reason it is not determined to be a work made for hire, the copyright ownership transfers to you as the commissioner of the work.
Make sure that whatever you agree on is mentioned in the contract. I can’t stress this enough. Don’t let the shutter be clicked even once without it.
If people would stand up to greedy jerks like Justin, he would be out of business—or he would stop robbing people blind and behave himself.
For some legalese, try photo lawyer work made for hire.
Should you do work made for hire writing?
There is a flip side to this. While as a photography customer, you should try to get the agreement to say it’s a work made for hire, as a writer, you should be very careful about signing “work made for hire” contracts.
It means that you can never use that piece of writing again. Sometimes it’s worth it—if the price is high enough, or if it’s so specific to that client’s company that you’d never want to use it for anything else—but most times it’s not.
Even a piece that you’d never sell again could be used in your portfolio to help you land other clients. Choose carefully. In the past, out of desperation, I’ve done plenty of “work made for hire” writing, and I’ve regretted 80% of it. Most of my work could be repurposed or reused. To think of how much money eHow and other sites have made off of my writing…Yeah, choose carefully, guys.