Here’s a question that keeps popping up in my conversations with creators:
What’s the difference between a “work made for hire” and when I assign my copyright to someone else? In both cases I no longer own the copyright, so what’s the difference?
I’m so glad you asked! Because if you’re a creator who wants to encourage your clients to do the right thing (like pay you), the differences are pretty important.
A work made for hire is when you create something for someone else, the thing fits into one of these nine categories, and you have a written contract that explicitly says the work is a “work made for hire.”
If all of those things are true (or if you’re an employee making something in the “course and scope” of your job), then you never own the copyright to what you create. From the very moment the thing is created, it’s owned by the client or your employer. You can’t use the thing unless your client or employer gives you permission and they can do whatever they want with it even if they fire you in the middle of the project.
When you assign a copyright you are selling it to someone else. And in order to sell the copyright, you have to own it. You own the copyright to something you create so long as it’s not a work made for hire.
Setting aside situations where you make things as an employee, that means: no written contract? It’s not a work made for hire. If the thing doesn’t fit into one of the work for hire categories? It’s not a work made for hire. The contract is written but doesn’t say that what you’re making is a “work made for hire” or “work for hire”? It’s not a work made for hire.
The other rather important thing about a copyright assignment? After 35 years, you can cancel it.
You can go back to the client and say, “Hey, that thing I assigned to you? Yeah. I want it back.” You can do this even if you’ve signed something that says you super duper promise you won’t cancel the assignment; you can’t legally sign this right away.
To recap: when something is a work for hire, you never own the copyright. When you assign a copyright, you own it originally, but you’re giving it to someone else for at least 35 years.
So why should you care?
Well, let’s say you do work for a client and then, for some reason, they don’t pay you.
If what you’ve made is a work made for hire, you can’t stop them from using what you’ve made. If, on the other hand, you’ve promised to assign the copyright once they’ve paid you in full, you can stop them from using what you made. They don’t own it yet, you do. If they want to own it and use it, they need to pay you.
Or, let’s say you want to use what you’ve created in your portfolio. If your creation is a work made for hire, you can’t unless the client gives you permission. If you assign the copyright, though, you can reserve the right to display the work in your portfolio when you give them the copyright. You hold on to that tiny portion (but valuable!) of the copyright and give them everything else.
You might see contracts where they say if the work is not a work made for hire, then you agree that you’re assigning the copyright to the client by signing the contract. If you don’t think what you’re creating fits into one of the work for hire categories and you want the advantage of assigning the copyright under your terms (upon full payment, reserving certain rights, etc.), negotiate to add those requirements to the contract, or work with a lawyer to help make sure that what you’re signing is what you want to sign.
Do you have questions about how copyrights work? Let me know in the comments and I may answer your question in a future post.
Categories: Making Sense of Contracts