Many freelance writers don’t fully understand copyright law and mistakenly believe that the fact they are paid for a work means that they don’t hold the copyright in it. In short, since they were hired to do a particular job, that the work becomes a work for hire and they also transfer copyright in the work to the buyer.
However, that is very rarely the case.
Though the language is very confusing, simply being paid to create a work does not make it a work for hire under the law. Rather, the law actually only caused a work to be come a work for hire under a very specific set of circumstances, ones that very few freelance writing jobs actually quality for.
So are your freelance writings works for hire? We’re going to take a closer look at what the law actually says and, hopefully, help you find out the answer for yourself.
What is a Work for Hire
The basic premise of work for hire is actually fairly simple: An employer owns the copyright in a work created by an employee under the scope of their employment.
This means that, if you have a regular job that has you creating copyrighted works, such as writing memos for an office, your employer, meaning your company, owns the copyright to those works, not you. However, any creative works you make on your own time you still retain copyright in.
In this regard, the work for hire status is created more or less automatically. If you are considered an employee under U.S. law and you create copyrighted works as part of that employment, you transfer the rights to those works to your employer, nothing else has to be done and there are no stipulations.
Independent contractors and freelancers, however, have a slightly more complex road. The law does allow the work of independent contractors to become works for hire, but only under certain circumstances. Specifically, it has to meet these three requirements.
- The work must be commissioned or specially ordered, meaning that the work has to be new and can not be an already existing creation.
- Prior to the start of work, both parties must agree in a signed document that the work is to be considered a work for hire.
- The work falls into one of nine categories that qualify as commissioned works under U.S. law.
The nine categories of works are as follows:
- A translation
- A contribution to an audiovisual work
- A contribution to a collective work
- An atlas
- A compilation
- An instructional text
- A test
- Answer material for a test
- A supplementary work (IE: a foreword, bibliography, etc.)
The problem with freelance writing being a work for hire becomes very clear when you look at the list. Though some freelance writing can sometimes be considered a contribution to a collective work or, in other cases, a supplementary work, in many cases it doesn’t.
However, even if a work of freelance writing does qualify for one of those nine categories, without the contract signed beforehand and it being a specially commissioned work, there is no work for hire status and, in those cases, the original author retains the copyright in the work.
Since so much of freelance writing doesn’t fall into one of these nine categories and such a high percentage of writers work without a written contract, as bad of an idea as that is, it seems likely that a large majority of freelance writing does not qualify for work for hire status.
With that in mind, the question becomes “So what happens with those works?”
What Becomes of Works Not for Hire?
If a work doesn’t qualify for work for hire status, which would simply transfer the copyright and total control of the work to the buyer/employer, then the copyright stays with the author. However, that does not mean that the buyer doesn’t have any rights to use the work.
There are two ways one can acquire the rights to use a work, the first is through transfer of copyright, as with work for hire agreements, and the second is through licenses.
If you signed a contract for the work, it should lay out the exact rights that are transferred to the buyer. These rights can be so extreme and exclusive that, for all intents and purposes, the work is a work for hire, with the buyer having all relevant exclusive rights.
Most contracts, however, are somewhat more balanced, offering periods of exclusivity or only making them exclusive for certain uses.
If there is no contract, which is once again a bad idea, then there is an implied license that exists between the parties. By accepting the money for the work, creating it and submitting it to the buyer, you, through your actions, grant a license to the buyer.
However, what that license is exactly can be difficult to say. Cases of implied licenses are messy to deal with because, without a real contract, the courts have to decide what the intent of the parties was based on correspondence and actions take by them.
This is where things can get very unpredictable and questions such as “Do you have the right to sell the work again to someone else?”, “Can you post the work in your portfolio?” and “Do you have a right to be attributed for your work?” can get very messy.
Though you (or the other party) may have a specific intention, if it is interpreted differently by the court, you may find yourself losing rights you never intended to give away, once again highlighting the importance of a good contract.
Of all the areas of copyright law, work for hire is easily one of the most important for a freelance author to understand. Though the basics are fairly simple, especially if you are a traditional employee, being a freelancer makes the law much more involved and nuanced with a lot of gray areas.
In the end, if you don’t want a work to be for hire, don’t sign any contracts indicating that you agree to it. If you do that, you should be safe. However, this doesn’t mean that you should shy away from contracts as they are there to protect you as well as your buyer.
All in all though, if you are aware of the rules and understand your obligations, you’ll likely find that work for hire isn’t terribly complex or confusing, you just have to know what the law says and realize what is expected of you as a writer.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.