"Work for Hire" and Design/Content Considerations

[Chris Chapman]

For my professional friends, what type of language is in your contract about design work being "work for hire?" My question is based that my district is making a grab for all digital files are the property of the district. No where in my contract does it even specify about the content that I create for our facility. From light plots, to scenic designs, to call sheets, to cue sheets, etc. If I ever want to reuse them in another gig, under their new terminology, it belongs to them and I need to seek clearances.

I was under the belief that content created under "work for hire" needed to be agreed to by both parties.

Anyone have any experience with "work for hire" and how it impacts your designs/content/etc?

 

[MNicolai]

"Work-for-hire" means any/all works produced are property of the client.

I'll post exact wording later but basically my contracts state I am an independent contractor, that no part of those agreements is "work-for-hire", and that my intellectual property and any digital or other works produced by me remain my sole property except where explicitly transferred over to client within those agreements.

Also, there is a difference between licensing your works to a client for their use and transferring ownership of your work to that client. Don't mistake those concepts as being interchangeable.

 

[Chris Chapman]

Thanks Mike. That is the language I'm specifically looking for.

 

[museav]

This is the type of topic that really needs to be addressed by a qualified attorney, but Mike hit on what I understand to be two very critical points, those of employee versus independent contractor and license versus ownership.

'Work for hire' and copyrights can be a bit more complex for independent contractors as while generally all rights lie with the creator(s), certain types of work by independent contractors, some of which could fall within the scope of your situation, could be considered as 'work for hire'. However, there are specific conditions that must apply for the work of an indepeendent contractor to be considered 'work for hire' and one of those is an agreement by all parties involved to the work being 'work for hire'.

On the other hand, if you are an employee then in a very simplified interpretation, anything you develop as part of your work is likely considered 'work for hire' and all rights belong to your employer unless you have an employment agreement that specifically states otherwise. So if you create light plots, scenic design, call sheets, cue sheets, original music, scores, etc. as part of your work role for an employer then those likely belong to them.

Related to this is the issue of when work can or cannot be considered that of an independent contractor. Does the school or venue control when you work or how you perform the work? Did you use any of their equipment or tools perhaps including any 'educational use' licensed software? It can be quite easy for work or services performed to not meet the requirements for being that of an independent contractor and to be considered to be an employee/employer relationship rather than a contractor/client relationship, and thus inherently 'work for hire' unless otherwise defined.

As Mike noted, I find that many people ask for ownership since that makes it easy for them but what they often really require is simply some form of license. Unfortunately, when dealing with government agencies or large corporations they may agree but still be unwilling or unable to deviate from their standard terms and conditions.

 

[Chris Chapman]

On the other hand, if you are an employee then in a very simplified interpretation, anything you develop as part of your work is likely considered 'work for hire' and all rights belong to your employer unless you have an employment agreement that specifically states otherwise. So if you create light plots, scenic design, call sheets, cue sheets, original music, scores, etc. as part of your work role for an employer then those likely belong to them.

Related to this is the issue of when work can or cannot be considered that of an independent contractor. Does the school or venue control when you work or how you perform the work? Did you use any of their equipment or tools perhaps including any 'educational use' licensed software? It can be quite easy for work or services performed to not meet the requirements for being that of an independent contractor and to be considered to be an employee/employer relationship rather than a contractor/client relationship, and thus inherently 'work for hire' unless otherwise defined.

That is my primary issue, Brad. I'm fine if my work is considered "work for hire" as I am an employee, but none of this content I create is actually specified in any of my employment contracts. My understanding of "work for hire" tenants usually include that vital "agreement with employer" that is within the Independent Contractor verbage. Since the content is specified by my employer, does it still count? I'm re-entering contract negotiations and some of the language is very vague. I want that cleaned up.

 

[museav]

That is my primary issue, Brad. I'm fine if my work is considered "work for hire" as I am an employee, but none of this content I create is actually specified in any of my employment contracts. My understanding of "work for hire" tenants usually include that vital "agreement with employer" that is within the Independent Contractor verbage. Since the content is specified by my employer, does it still count? I'm re-entering contract negotiations and some of the language is very vague. I want that cleaned up.

I was hoping someone else would chime in as this is really the purview for labor relations experts or labor attorneys, but in my very simplistic understanding any work that is "by an employee within the scope of his or her employment" is 'work for hire' unless specifically otherwise stipulated in an employment agreement. There does not have to any agreement to or acceptance by the employee to the work being 'work for hire', rather it is 'work for hire' unless either specifically agreed otherwise by both parties. I can't speak to the details of your employment agreement but it would seem to need to specifically define any work that is within the scope of your employment that would not be considered 'work for hire'.

Apparently this can even be extended outside the workplace. This has been a major issue for computer programmers but as I understand it, if your scope of work for an employer includes creating light plots, cue sheets, etc. then any light plot, cue sheet, etc. you create may be theirs even if not created specifically for them and/or created outside of your 'normal' work place or hours.

I also believe that the content being specified by the employer may be relevant as it might make them a co-author of any related original content. That latter may also be relevant as my Attorney once pointed out how much of my work is actually derivative work based on previous work and not an original creation.

On another really off the wall aspect that some people encountered, be careful of focusing on the work result being a physical thing such as a cue sheet, call list, etc. rather than on the service related to it. States have been known to look at situations where it is the physical result rather than what it represents being what is provided as being providing a product rather than a service. And that then gets into sales tax, etc. So you might want to watch stressing the physical manifestation and what you do being developing a light plot rather than it being providing lighting design with the light plot simply a way to document the design.

But I cannot reiterate enough that the related laws vary from state-to-state and are always changing in regards to the laws themselves and the interpretations of them. I strongly suggest hiring a labor attorney to review your contract. Doing so for my standard contract was one of the best investments I ever made and probably more than paid back the financial investment in insurance premiums by being able to answer on liability insurance application forms that I did have the contract reviewed by an attorney.

 

[MNicolai]

Various related clauses from my contracts:

Non-Exclusive Rights
Contractor is allowed to reuse or repurpose works generated from agreement with Client except where expressly prohibited in this agreement.

Intellectual Property
Services provided to Client by Contractor are not “work-for-hire”. Intellectual property contributed by Contractor remains the sole property of Contractor.

No Assertion of Rights
It is understood and agreed that, except for the licenses granted to Client under this agreement, all right, title, and interest in and to intellectual property provided by Contractor is sole property of Contractor and is not licensed to Client for use.

No Prior Agreement
This is the entire agreement upon Contractor and Client. There is no representation past or present, by Contractor or any person acting for Contractor, which does not appear herein. This agreement may not be amended except by a written change order or addendum executed and paid for as provided herein.