Film Law_ What Is a _Work for Hire Agreement__

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Film Law: What Is a “Work for Hire Agreement”?

If you’re a filmmaker, or screenplay writer, there’s a very strong likelihood that you’ve experienced situations in the past in which the work that you did was owned not by you, but by your employer, as a result of standard U.S. copyright laws. In fact, production companies in the film industry rely heavily on U.S. copyright laws and, if you’ve ever worked for a production company, there’s a strong chance that your work contracted stated that it was a “work for hire agreement” under which any work that you produced during your time with the company was in fact not yours, but was legally owned by the production company that hired you.

What is a Work for Hire Agreement?

U.S. Copyright law has what is known as a work for hire doctrine which directly deals with ownership rights in regards to the copyright of any work that you were to produce for someone else.

Rarely do filmmakers produce a movie all by themselves and without any outside support either financial, labor, or otherwise. So, when a film is produced, or a screenplay is written, who has legal rights to the copyright of this work?

The truth is, it all depends on whether there is a work for hire agreement or a work made for hire contract.

Under the work for hire agreement, there is a general understanding or premise that when you are hired on as an employee to work for a production company. The work that you perform will be owned by the employer as will any copyright to the work. 

As an Employer

The production company must follow copyright laws regarding ownership based heavily on whether you have been hired by them as an employee or as an independent contractor.

Rules regarding employee work for hire agreements vs. those regarding independent contractor work for hire agreements are not the same.

Employee Work for Hire Agreements

Under employee work for hire agreements, any work that you create while employed by the production company is owned by the production company automatically. There are no rights discrepancies or really any questions about it. You work for them, the work you do is theirs. Period.

So, how can you tell if you’re an employee that may be bound by the work for hire agreement? Generally speaking, employees are paid an hourly wage or salary.

They receive company benefits. Like paid time off or healthcare coverage. They have a boss that oversees and maintains control over their work.

If you’re required to generally follow the rules of the business, and are not free to have complete autonomy to perform the work at your leisure and on your terms, then you’re most likely an employee. 

Independent Contractor Work for Hire Agreements

Under independent contractor work for hire agreements the rules on copyright become a little less cut and dry. If you’re hired by a production company as an independent contractor or a freelance contractor. Your work is only owned by the employer under the following circumstances:

  • The work is custom-ordered or commissioned and both you and the employer have agreed in writing that the work is performed as work for hire. 
  • The work represents one of the following nine categories including a contribution to a collective work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, a part of a motion picture or type of audiovisual work, or an atlas. 

Retain Work Rights

Remember, all of the above must be true in order for the employer to retain rights to your work if you are hired as an independent contractor.

Therefore, say you perform work, but you created the work on your own. And there is no agreement that the work was to be performed as work for hire. Then you own copyright rights NOT the employer. Like when you’re providing part of a motion picture.

Likewise, if you are hired to provide a custom order, and it falls within the nine categories, but there is no work for hire agreement in writing between you and the employer, again, you own copyright rights, not the employer. 

Written Documentation

As a contractor, for the employer to have the upper hand and to have copyright rights to the work that you provide? You must have a written agreement. One that is between the two of you that the work is performed as work for hire.

The work must be custom or commissioned and it must fall within the nine categories listed. Any veering from those key factors means the work may be copyrighted by you, not the employer.

Tell the Difference

So, how can you tell if you’re an independent contractor and not an employee? Generally speaking, independent contractors have autonomy and full control over the work that they do. The employer cannot tell you how to do the work, when to do the work, or where to perform the work.

You might use terms like “Freelancer” or “contractor” to describe your work. Because you do not have a “boss” you have a client. One whom you provide work for at their request and upon agreement between the two of you.

Contractors are usually paid by the job. Not by the hour or as a salary. They do not receive benefits like health care coverage or paid time off through the employer.

Be Clear on Hiring Terms

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Say you’re a film producer wondering about work for hire agreements. In addition to what steps you should take to ensure that you, the employer, retain copyright rights to the work that you pay for.

Consider the importance of maintaining clear terms on hiring

If you do not intend to hire someone as a paid employee that receives employee benefits consistent with other employees on your team, there’s a good chance that this individual will be considered a contractor.

In which case, if you wish to retain copyright rights to the work that you request, you should make sure that you work out a work for hire agreement.

And that you and the contractor sign the agreement. Plus the work the contractor performs falls within the nine categories that were listed previously. 

The Nine Categories

As a producer, you should always make your independent contractors sign a work for hire agreement. You should make sure that the work you ask of them falls within the nine categories that are protected by the U.S. copyright laws under work for hire.

As well as that the work is either custom-ordered or commissioned. If you want to be sure that you retain rights to copyrighting the work. 

Encompass Copyright

Film producers should be sure to cover copyright in any contract that they provide. Either to employees or to independent contractors.

Be clear, and openly specific about copyright. Including details on exactly WHO should retain copyright rights of the work, in your contract. There will be less ambiguity should the question come up later on. 

As a contractor, you should know the above rules. Make sure that IF you wish to retain copyright rights to any work that you perform, that you do not agree to any work for hire. 

Retaining Rights

The same reigns true for employees that wish to retain rights to their work. If you want to bear copyright rights to any work for which you are involved in. It must not be performed as an employee! 

Simply stated, know that if you are an employee, you are automatically providing work for hire. As there is an implied work for hire agreement that generally comes along with any other condition of employment.

Therefore, if you wish to retain copyright rights that apply to the work you perform? You should work only as a contractor. You should not sign or otherwise agree to any work for hire agreement.

Consult an Attorney

Most importantly, whether you’re an employee or a contractor, or a producer or anyone in the film industry that has questions about U.S. copyright laws and what a work for hire agreement means.

You should consult with an attorney to ensure you are familiar with the exact rules and regulations that apply to your unique situation.

Protect yourself, protect your business, and protect your rights to copyrighting your work. 

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