When and Why is a Work for Hire Agreement for a Documentary Film Necessary? 

When it comes to filmmaking, learning the ropes of entertainment law and the various clauses that should, or should not, be included in a typical contract between either hired employees or contracted workers can be overwhelming. You’re likely going to hire a production attorney to assist with the majority of the legal tasks. But knowing the various rules and regulations and how different clauses in contract agreements can protect you or your business can mitigate many of the risks otherwise involved. You hear a lot about work for hire agreements, especially when it comes to producing a documentary. But exactly when is a work for hire agreement for a documentary film actually necessary and are there instances in which these clauses can be avoided?

Why is a Work for Hire Agreement for a Documentary Film Important?

As a documentary filmmaker you’ve got more on your plate to worry about than just a simple work agreement between you and the talent or crew members that you hire to get the job done.

At the same time, if you don’t include the work for hire clause, you might be unpleasantly surprised to find out that you potentially reduced the ownership period of your copyright. 

That’s right, we said it! If you DO NOT include a work for hire agreement for your documentary film? You might be limiting the duration of your copyright ownership in a situation. In which you otherwise could have extended your ownership.

Two Part Contract

This means that if you incorporate a work for hire clause in your employment contract or the services agreement that you have employees and contractors sign it will typically have a two part contract.

Which states that everything created by the individual during the course of employment is done for hire. And that if there is any work that is not a work for hire, the signatory individual assigns all rights to the employer.

Basically, the work is either for hire which means the employer owns all rights to copyright. Or if it does not constitute a work for hire then the creator assigns rights to it through written assignment. So either way the employer retains the rights to the work.

Termination

The way that copyright law works, the rights that are provided by ownership-assignment can later be terminated after about 40 years.

However, rights that are made by the work for hire agreement entered by a regularly hired employee, or an independent contractor that has agreed to work for hire cannot be terminated. Ever.

When is a Work for Hire Agreement for a Documentary Film Necessary?

Now that you know why a work for hire agreement for a documentary film is important. Let’s take a look at when this type of agreement is important.

It might surprise you to learn that a work for hire agreement may only be established. And entered in advance of the work being created. What does this mean?

If you’re thinking about the statement previously mentioning the work for hire agreement would result in the employer owning the rights permanently. Whereas the assignment of rights could be terminated after a period of time.

You’re probably wondering if you can’t just renegotiate some of your contracts to include the work for hire clause. So that you can extend ownership of your rights. But you’re wrong!

Beforehand

When it comes to establishing a work for hire agreement in a documentary film the agreement must be made BEFORE the work is created, not after.

An employer may never convert an existing work that was NOT made for hire into one that was. Not even with the permission or agreement of the original creator on his or her side. 

Copyright law is almost always based on how a creative work originates. In this case, if the work originates as a work for hire, then the employer will own the rights to the work – forever. If you’ve got past projects that originated without a work for hire clause.

And you’re hoping that you can change the work agreement so that you can benefit from the copyright legislation which would extend your ownership of rights beyond the point of termination which would otherwise be 40 years, think again.

Origination

Since the copyright of the work is based on the origination, if the work originates as a work for hire then it will continue to be a work for hire. Likewise, if the work originates as a work that has assigned rights, it will continue to be such.

This is why it’s important to enter any work for hire clause in the original employment contract or services agreement between you and the employees or contractors that you hire.

Such as editors, script writers, producers, cinematographers or other support that may contribute to the creation of your finished film.

What Happens if a Work for Hire Clause is Not Included in the Hiring Agreement?

Producing a documentary film requires a lot of careful consideration as to the individual steps that will be taken in defining the contract between employees and contractors that will be involved in the production.

In order for a film producer, or production company, to retain the rights and a clean chain of title. Each service contract or employment agreement must be worded. So as to protect the rights of the producer. And to keep the finished film copyright ownership in their hands. 

Original Work Rights

The work for hire clause will ensure that you, the hiring producer or production company, retain the rights to the original work. As well as its subsequent edits or additional pieces that are produced by the employees or contractors that you hire.

If a work for hire clause is not in your hiring agreement? You are taking a very big risk in letting go of the rights that you could otherwise maintain. And you could have trouble when it comes time to distribute your documentary.

Without this agreement, the creative professionals that have contributed to your film would retain the right to independently copyright the portions of the work that they contributed to and this could jeopardize your chain of title.

Which is important to any distributor to ensure ownership rights are clear and understood. As well as to ensure that you have the right to call the shots without interference from any other “owners.”

In Summation

So, when and why is a work for hire agreement for a documentary film necessary? Pretty much anytime you’re hiring an employee or contractor to provide creative works to the film.

Including cinematography, editing, research, script writing, or other services. A work for hire clause should really be part of your contract.

Without the work for hire agreement, even in an implied situation such as when hiring an employee. You’re taking a potential risk for misunderstanding.

Before you administer any services contracts or employment agreements? Make sure to discuss the wording and individual needs with a production attorney.