Currently, there has been a big push for Black creatives to maintain ownership of their intellectual property, particularly their copyrights or “art” (i.e. art, books, music, photographs, video content, scripts, etc).

Ownership of copyrights are important! Especially because in the long-term, the art may be more valuable than the one-time payment received for the assignment of the copyright.

Gif credit: Giphy 

For example, if a photographer captures a photo of an infamous celebrity, instead of selling the photo to one media publication for a fixed fee, the photographer can sell the photo at a later date or license the photo to multiple media publications to generate continuous income.

However, creators may run into an issue when trying to maintain ownership of their art if they entered into a work made for hire agreement.

Here's what you should know before you sign on the dotted line:

There are two types of work made for hire agreements

The first is employment agreements. In an employment agreement, there is typically language that states anything created within the scope of employment is owned by the company. There may also be an assignment provision that allows employers to claim ownership to art created outside the scope of employment.

The second is specially ordered work (typically created by an independent contractor). Art created by a freelancer or independent contractor as a special order or commissioned work remains in ownership of the freelancer or independent contractor unless there is written proof or a contract that specifies that the art is a work made for hire; and the commissioned work fits within one of the following categories:

  • (i) a contribution to a collective work
  • (ii) a part of a motion picture
  • (iii) a translation
  • (iv) a supplementary work
  • (v) a compilation
  • (vi) an instructional text
  • (vii) a text
  • (viii) answer material for a test, or
  • (ix) an atlas

Of these categories, a supplementary work is the most common.

The law defines a “supplementary work” as a work prepared for a publication as a secondary supplement to a work created by another author for the purpose of illustrating, commenting upon, or assisting in the use of the other work, such as forewords, pictorial illustrations, editorial notes, musical arrangements, and appendixes.

Note: even if your work fits into one of the categories above, you should still have a written agreement stating that it is a "work made for hire."

For creatives who want to maintain ownership of their copyrights, here are some questions to ask yourself

If considered an employee, is the art being created within the scope of employment and is there an assignment provision for work created outside the scope of employment?

If considered an independent contractor, is there a written contract and does that contract classify you as an independent contractor?

Does the contract state that the work you are creating is a work made for hire or include language to assign your ownership right to the art?

If you answered yes to any of the above, you have no ownership of the art.

Now, it's important to note that if you want to keep control over your work, it's best you don't agree to a work-for-hire or an assignment of copyright. Consider licensing, instead!

Ultimately, even if work for hire and assignment provisions are included in contracts, creators, particularly independent contractors, can always negotiate to make the terms more favorable for them or negotiate to cut the terms completely.

Even if your work is made for hire, there is no need to worry! The most important thing is to have a clear understanding of the meaning and the application. That way, both you and the client get the agreement you want.

Are you a freelancer? How do you plan to apply this knowledge to your next project? What else do you want to know about work-for-hire agreements? Let us know in the comments!