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Work-Made-for-Hire: Know Your Copyright Rights

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©Copyright 2002, 2003 Jill J. Jensen, All Rights Reserved
APCC Consulting Success, Spring 2002

At 9 a.m. last Tuesday, your office phone rang. Maureen, Training Director for XYZ Corporation, needed help. “Our Customer Service manager finally recognizes that the way his staff responds to e-mail requests isn’t producing positive results. He’s ready to give his people some communication training, but we don’t have anything appropriate on the shelf. I’d like you to work with us to get him something right away. When can you start?”

You’re surprised and pleased Maureen remembered you from last month’s local Chamber meeting. You’d love to add XYZ Corp to your client list. Now, the little hot-bot in your brain scurries through your upcoming calendar and to-do list like a Web spider searching Google. “What’s my first open date?” you think to yourself, and more importantly, “What does Maureen really need?”

Know Your Copyright Rights
Before you take on this opportunity to display your communication training savvy, be sure you know your copyright rights. It pays to think ahead when making contractual agreements about your creative work. While a phone call or a handshake may have brought you this far, good business practice demands that you clarify expectations, attend to relationships, and get everything in writing.

The knottiest of copyright issues, especially for consultants, writers, or trainers, may be what’s known as “work for hire” or “work made for hire (WMFH).” Why should you be concerned? Because your livelihood may be at stake if you’re caught unaware of copyright-related fine print in the agreements you make and the contracts you sign. We’ll never cover the entire broad range of copyright issues in this article, but let’s unravel a few strands of this knot and see where they lead.

The Essence of Copyright
Whenever an idea lurches out of your head and finds itself made tangible, that “fixed” form is immediately copyrighted. It’s original to you. It’s now expressed in some way. It’s copyrighted. Done. And it’s protected even without any “notification” – placing the copyright symbol or word, date of first creation/publication, and your name on the item.

Such notification was required for copyright protection in the United States before we decided to change our laws to conform to the Berne Convention, one of several international copyright agreements affecting copyright matters in the United States. With the exception of blank forms, tables of standard measures, lists of recipe contents, and the like, it’s enough for the blinding flash to have made it out of your head and into some form – book, training handouts, e-mail message, photograph, video, CD, audio recording, Web site, computer program, streaming media, whatever.

Of course, your next step should be registration of this masterwork with the U.S. Copyright Office <http://www.loc.gov/copyright> (See Elizabeth Frick’s related article for guidelines on registration), especially if you ever hope to claim damages for any kind of infringement. 

Five Exclusive Copyright Rights
Once an idea is expressed in fixed form, U.S. law – Section 106 of the 1976 Copyright Act – provides original authors the following five exclusive rights:

• to reproduce the work
• to create derivative works based on the original
• to distribute the work
• to perform the work publicly
• to display the work publicly

The DMCA and Other Legislation
The Digital Millennium Copyright Act (DMCA) of 1998 and on-going legislative activity attempts to address issues related to “new media” technologies, given the surge in online adventures such as streaming media and the challenges of deciding what’s a performance, what’s a display, and how the electronic transmission of information impacts copyright and ownership agreements. 

As digital technologies make “sharing” all manner of creative work easier, copyright infringements have the potential for increasing as fast as you can push the button on the photocopier or download a PDF, MP3, or TIF file. Although you might spend a lot of time worrying about such developments, a more positive approach simply lets the auto-pilot part of your brain keep copyright legislation and technology issues on the radar screen. No doubt, flares will zoom skyward when an issue hits critical mass and shows up on CNN or MSNBC. Time enough to pay more serious attention then.

Copyright is a Personal Property Right
In the meantime, a key to understanding copyright is to remember that it’s a personal property right. Not only can original authors bask in the glow of having turned their brainstorms into imaginative tangible creations – things of some sort – like chairs or jewelry or cars, they are now thrust into the realm of personal property rights, one of which is copyright.

Authorship, getting the idea out of your head and into fixed form, is one concept; ownership, what you’ll do with the ‘thing’ that’s sprung to life, is another. Because original authors also ‘own’ the copyright in their creative work, they have the power to ‘authorize others’ to ‘exploit’ the five exclusive rights, usually by licensing subsidiary rights. Licensing agreements can spin off into other writings, movie deals, toys and games, t-shirts, and all manner of paraphernalia or related items.

For creators of training, it might mean developing agreements that license your original materials to one or more companies for use and/or reproduction, which could provide you with a tidy little income stream beyond the generous fee you receive for the incredibly amazing face-to-face experience of your presence in their shop.

Work-Made-For-Hire
Because copyright is a personal property right, ‘authorship’ and copyright ‘ownership’ are two different commodities, both affected by law. Yes, you created the original work so you are the author. But now you want to ‘exploit’ that work – get it out into the world. Maybe you’ll publish in print, present a training program, post information on the Web, or something equally cool. But maybe your creative work is part of your full-time job or part of an agreement you make with a client. Now, who’s the author and who’s the copyright owner? You? Your client? Your employer? It depends. By keeping yourself current on the issue of work-made-for-hire, you’ll have a better chance to control your own copyright destiny.

U. S. Copyright Circular 9
Circular 9 from the United States Copyright Office, “Works Made for Hire under the 1976 Copyright Act,” acknowledges that the concept is a complex one – and one that’s subject to case-by-case interpretation. Understanding WMFH means referring to both the “statutory definition” and “to its interpretation in cases decided by courts.” The statutory definition has two parts, the relatively black-and-white and the definitely gray. First, a work made for hire is “a work prepared by an employee within the scope of his or her employment.” That’s the straightforward part affecting what multi-taskers create in service of the ‘day job.’ If your energy level is such that you also offer consulting ‘on the side,’ check your full-time employment agreement for guidelines on ‘extracurricular’ activities and who benefits in what ways.

If you’re a full-time consultant or contractor, here’s where you’ll need a ‘gray crayon,’ as your projects probably falls under the second part of the definition: “a work specially ordered or commissioned” for use in a number of ways, including “as an instructional text.” Key to this part of the definition is the following phrase: “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” As Circular 9 reminds, “Such a work can be a work made for hire only if both [emphasis added] of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.”

Part of a Big Picture
Because copyright and WFMH are determined by both legal statute and the interpretations of case law, the information you’re reading right now can give you only a broad picture of the issues – and nothing said here should be taken as legal advice. As when addressing any critical business issue, talk with a qualified attorney about your specifics.

You can also find useful information from a number of professional associations that fight long and hard on the WFMH issue. One solid source is the American Society of Journalists and Authors (ASJA). At their Web site <http://www.asja.org>, you’ll find an extremely helpful position paper, written by APCC’s own Pat McNees, who emphasizes the value of WFMH awareness for all authors. Your ability to re-use material developed for different settings and with different clients could be stopped in its tracks if you’re not paying attention to the content and wording of the contracts you sign.

Sometimes, ending up with all the marbles might not be critical to the deal, but often, owning the copyright on materials you author can be the key to significant income and growth for your own business, regardless of the partnerships, clients, and other relationships involved. Decided how you’ll respond to Maureen’s request for help? Decent decisions depend on being informed.

Why Should You Care?
Because you should benefit from the fruits of your labor – or you should know what you’re exchanging for them. To repeat: as an original author, you automatically own the personal property right called ‘copyright’ in your work, you have exclusive rights, and you can ‘exploit’ those exclusive rights through contracts, agreements, and relationships with others. A huge exception to the benefit of authorship: works made for hire (WMFH). Remember the ‘personal property right’ nature of copyright? Authorship vs. ownership? Sometimes you’re both, but sometimes, you’re not. Just because you created something (authorship), whatever it might be, doesn’t mean you own the copyright to it. While you may have a sound business reason for doing it, just know that if you sign a WMFH agreement for the creation of this magical material, you give up all rights to your work – and you can never get them back.

As an employee of a firm, organization, or even another individual, you may think the parameters for ownership of creative works are clear. Maybe yes, maybe no. But if you’re a consultant or contractor, which probably includes most trainers, writers, or independents of any stripe, the work-made-for-hire issue is not always drawn in black and white.

What If…
… you’re an independent contractor developing custom training materials? While customizing your materials might seem to limit their capacity for re-use and additional income beyond the specific client, as long as you don’t sign a contract with language identifying your agreement as a “work made for hire,” your materials remain your own and you have the capacity to change and get paid for them again and again. This is the place where good practice says you might put ‘licensing’ language in your agreement, so both parties feel they’ve received what they need, but your future use and income isn’t hobbled.

Reva Daniel, owner of Dynamic Business Writing in Clinton, MS <Reva@DBWriting.com> and long-time APCCer, develops and markets her own training materials, complete with copyright notice. “My customers realize that if they use [my materials] without permission, they are breaking copyright [laws].” Reva works with government agencies, such as Medicare, where she recently created a series of fact sheets for their website. “I charged them a fair and substantial price for the work and turned it over to them. They bought it from me, and I’m gratified they are using it. I also taught a couple of their people how to make changes as needed because I wanted to be sure that they used the products and kept them up to date.”

Reva’s Contract Arrangements
Reva also talks about her contract arrangements. “I seldom write the contracts for training or consulting because the company or agency usually has lawyers who insist on writing [them]. I edit the contracts to assure that everyone agrees my training materials are mine alone, even though I have customized the training materials for their organization. 

If I prepare an example from their work (an edit of a document, perhaps), they can certainly retain ownership of that product, but my written training material is mine.” Again, all of Reva’s materials carry her copyright, and she charges for additional copies, which are available – legally – only from her.

What If…
…you’re an independent contractor with a prospective project that will allow you to adapt some of your existing materials? Again, be aware of ‘ownership’ wording in any written agreement. This situation is ripe for ‘licensing’ language. You come to the table with materials already in hand. You can make it a win-win by identifying parameters in the particular project – who gets the use of what for how long – and by specifically retaining ownership. 

APCC member Pat McNees, based in Bethesda, MD, feels strongly about the WFMH issue. Pat serves on ASJA’s contracts committee, in which capacity she helped write (and is revising) the group’s WFMH position paper, posted on its website. <http://www.asja.org/pubtips/pubtips.php> “I would never produce training materials on a work-made-for-hire basis. PERIOD,” says Pat. “I might customize my copyrighted materials for corporate training and license the right for the corporation to use those materials.” Not only is it a matter of ownership, it’s a matter of economics. “There are organizations that will pay you a daily rate to do training that is considerably lower than the rate they pay if you sell them a package that includes your copyrighted training materials.”

Pat’s Cautionary Tale
Pat also tells of a too-typical outcome when operating under a work-made-for-hire agreement. “A member of [ASJA] reported that, having sold an article for a magazine on a work-made-for-hire basis, she was then refused permission to post the article on her personal website. When you do something as a work-made-for-hire, you give up all rights to that product, and the copyright for it is owned by the person who paid you for it. …Either it had better not be of much value to you for re-use, or you had better ask for a very high fee to create the product.”

What If…
…you’re developing new training materials as a subcontractor? You’re probably at a serious disadvantage here because you’re unlikely to know the terms to which the main contractor agreed. Obviously, this is an excellent opening to discuss WMFH issues with the main contractor and offer clues about how the whole copyright ownership issue could affect you as a sub. Reality says they may or may not care.

Once you know their take on the subject, you can decide if you want to continue your subcontracting relationship. It could actually be very lucrative for you financially and no big deal relative to anything else. Perhaps all you want or need is the money to pay your rent and a clear field to tell other prospective clients that you were the eloquent wordsmith underneath that computer documentation manual or that college recruiting brochure. You’re happy to write what’s needed and don’t care about re-using any particular piece of it as long as you can show samples and explain the context. Go for it.

Common WMFH Opportunities
In fact, some very common writing opportunities come primarily from the WFMH area. The website of the National Writers’ Union <http://www.nwu.org> offers contract tips to a group of writers who more typically operate under work-made-for-hire contracts, those in business, instructional, technical, and electronic media. NWU refers to this group as BITE writers and is diligent about terms, terminology, and its intent to help such writers gain more beneficial contract terms. Check the NWU website for “Tips for a Better Work-For-Hire Contract,” as well as links to many other writers’ resources. 

Making Copyright a Priority in Your Business Contracts
Although there may be no hard-and-fast rules for handling copyright in your business dealings, here are some general guidelines:

• Read the project contract and edit it with your best interests in mind, or provide a contract with your own favorable copyright-related terms. See the list of resources at the end of this article for guidance about specific language to use or avoid.
                 
• Know what you want from the agreement and know where you stand in the relationship with your client. Relationship is always an important factor. After all, you don’t have clients if you’re no good at building and maintaining relationships. Contract negotiations are relationship opportunities. Make them win-win ones. 
                 
• Be prepared to stand your ground during contract negotiations. You don’t need to be antagonistic, but you’ll probably need to be firm, and you certainly need to know what you’re talking about. It’s easy to forget that the author of the work and the owner of the copyright may not be the same person or entity. In any negotiation, optimal strategy identifies your walk-away position before you start talking and backs it up with action. If you mean it, say so and follow through. That’s still a win-win.
                 
• Keep up to date on WMFH issues by checking government and professional creative association websites. ASJA’s ContractsWatch e-letter is available to the public. This group does a lot of important work that’s useful to all creative people and will help you stay aware of ever-evolving, hard-to-pin-down WFMH issues.
                 
• Check the US Copyright circulars posted on the Library of Congress website <http://www.loc.gov/copyright> so you’re clear on the actual wording of the law, including the difference between authorship and ownership in copyright and the rights in each. If you created the work (authorship), you’re also free to exploit it by licensing subsidiary rights – or even selling your copyright in work outright, and, therefore, making a new “owner” of the copyright in your creative output.
                 
• Whatever you do, be conscious of your actions and the consequences. WMFH clauses are quietly slipping into the contract language of businesses large and small. Be sure to read everything (and edit, if necessary) before you put your name on the line.
                 
• Remember, no one can sign away your ownership rights but you, and you’re the only one who can decide whether it’s a deal-breaker or whether it’s no big thing and not the hill you’re willing to die on.

Boiling It Down
Copyright law, particularly that dealing with work made for hire, may seem like a minefield you’d rather not cross, but it doesn’t have to be so terrifying. It’s just another part of doing business and making professional agreements. While each situation, each contract, each partnership is unique to the people, product, and conditions involved, you owe it to yourself to become familiar with basic copyright information and think about how it can affect your business dealings.

Good copyright-related information is available on the Web – from the US Copyright Office, ASJA, NWU, and others. Chances are your regular business lawyer is not an intellectual property expert, but that person is on your business team and should already be reviewing your key agreements. Offer a copy of Circular 9 and ask that awareness of WFMH issues be part of the considerations during your legal dealings. 

Think… “Employment Relationship”
With the caveat that we’re not offering legal advice in this article, think of WFMH in terms of ‘employment relationship’ and it may help sort out the issues in your particular situation. In general, the creative work of employees belongs to their employer – an employee may be an author but the employer owns the copyright because they provided all the resources and paid for the work.

As a consultant, contractor, trainer, or other communication professional, however, you have several options and choices about working arrangements, including copyright. Reviewing those options and making those choices in every business agreement you enter should be a no-brainer.

As author of a work and the initial copyright owner, you’re the only one who can determine how you want to ‘exploit’ that ownership – identifying what serves you best in each situation. Neither the law nor your written agreements should stifle your creativity or poison your working relationships.

When you know the basics about copyright and WFMH – and take advantage of resources such as those found on websites from ASJA, NWU, and the US Copyright Office, you’ll know when you need to call in the legal eagles and when you can negotiate on your own for the most favorable terms. With that, you’ll open the door to developing lucrative income streams and living to enjoy the creative part of your work. After all, that’s what makes it fun – and isn’t that why you got into this business in the first place?

Disclaimer: The information in this article should not be construed as legal advice. For specific information, consult with a qualified attorney regarding copyright laws in your state, country, or sphere of operation.

©2002, 2003 Jill J. Jensen. All rights reserved. Jill J. Jensen, owner of The Jensen Group in West Des Moines, Iowa, is a writer, graphic designer, photographer, and multimedia developer who has successfully made the leap from crayons to computers. She can be reached by phone at 515.225.8208, by email at <jjjensen@netins.net>, or via the Web at <http://www.jjjensen.com>.

This article was first published in Consulting Success, the newsletter of the Association of Professional Communication Consultants (APCC), Volume 24, No. 2, Spring 2002.

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