Contract Hacks: making freelance contracts better, one hack at a time.
I am personally of the opinion that work-for-hire gigs are not inherently evil.
Approached with eyes wide open, work-for-hire gigs can give you a nice paycheck, experience that you actually want, and a low stakes opportunity to work with a client that you’re interested in.
Approached with random flailing and the desperate hope that everything will work out OK, work-for-hire gigs can suck.
Here are a few hacks and tips for making sure your work-for-hire gigs fall in the first category and not the second.
It should go without saying, but I’ll say it anyway: this is not legal advice. It’s not legal advice because I’m not your lawyer.
First figure out: is it really a “work made for hire”?
True fact: saying something is a work made for hire does not automagically make it a work made for hire.
Under the US Copyright Act a “work made for hire” is a creation where copyright gets funky. Instead of the copyright belonging to the person that made the thing, it belongs to the person who specially commissioned them to make the thing.
It’s like the client is actually the one creating the work, they’re just using your hands and skills to do it.
Think “Ghost” but less creepy.
Now, while Congress likes to play all sorts of interesting games with the law, they did put some important limitations on pulling this copyright switcharoo.
A work is only a “work made for hire” if (1) you are the employee of the person asking you to make the work or (2) the work fits into one of nine specific categories and there is a written agreement.
Did you get that? If you’re a freelancer and you’re making a thing for a client, for it to be a work for hire the thing has to be a particular kind of thing and there has to be a wri-t-ten ag-ree-ment, emphasis on the written.
Hack #1: The retro grab
Let’s say you create a pretty great thing for a client and then, geez, their lawyer says you should have signed an agreement, paperwork amiright!, can you just sign this and get it back to us, ‘kay thanks.
If the contract comes after the work is completed, guess what, it ain’t a work-for-hire.
Why? Because when you created the thing, the copyright automatically vested in you. You now own in. No Ghost hands or nothin’.
Before you go dancing in the streets, though, ask yourself: do you really want this thing? Or are you OK if they own it so long as they pay you?
If you’re OK if they own it (because the heck are you going to do with a dentist’s website??), agree to transfer or assign the copyright but cross out anything having to do with “work for hire.”
If they push back just say, “I want to make sure this contract is enforceable for both of us so I want to make sure there is no confusion about what we did. Since the contract comes after the work was created it can’t be a work for hire, so let’s take that part out. Of course, I’m happy to transfer the copyright to you.”
This is especially true if you get a slimy “work-for-hire voucher” or a check that says “for work-for-hire.” Push back and tell them that’s not a smart way of handling the rights, and by the way, you only work with contracts.
Hack #2: Careful what you’re giving away.
Blah, blah, blah, legal language, confusing dependent clause, random capitalization, “does hereby agree that all designs, methods, software, know-how, inventions, writings, illustrations and all other work incorporated into the Deliverable are a work-for-hire and belong exclusively to the Company.”
What the what?
You created a logo for them. And now they want you to sign something that says you’re assigning your “know-how” to them forever and ever, amen?
Yes, it’s sloppy drafting. Yes, you’ve probably seen it in a lot of contracts. No, you should not sign it.
Fix the contract by either crossing out everything that doesn’t apply to the work you did or better defining what the thing is that’s a work-for-hire.
If the thing you’re creating for them is defined somewhere else say “the original elements of the final product as described in Paragraph X.Y.”
Want to make extra sure they don’t get to your know-how or the font you created and use for everything? Add a sentence that says anything not specifically created for them does not fall into the work-for-hire definition.
Because it’s fair for them to get what they’re paying you to create; it’s not fair for them to get anything else.
What are your favorite hacks for work-for-hire contracts?
Categories: Contract Hacks