Freelancing: Understanding the Work For Hire Agreement

U.S. copyright laws can make it confusing to figure out what rights you still own after selling your work to an editor. Do you still have full rights to your work, or partial rights? Aspiring writers, especially, might have the false belief that they still have full ownership of their articles after they have sold them. In some situations, this is true, depending on what publication rights editors are purchasing. However, in a "work for hire" agreement, this is false. The main premise of a "work for hire" means that the employer owns the copyright of the work. 

For example, if you are "employed" to write business memos for an office, those memos become the copyright of the employer, not you. 

Whenever an editor, business, organization, or entrepreneur wants to "hire" you to create something, you must find out if it is a "work for hire" job or not. Under a "work for hire" arrangement, U.S. copyright laws recognize the client as the employer and the freelancer as the temporary employee, thus recognizing the client as the copyright holder.

FACT: Most freelance writing jobs are not "work for hire." Whenever you create a piece of work, finished or not, U.S. copyright laws automatically recognize you as the creator and owner of the work. Things become tricky when you want to license or sell your work. Who owns what of your work when you sell it? And do these rights revert back to you? It depends on what publication rights you license.

Insider Tip 1: If an employer hires you to write a series of articles under a "work for hire," then all rights belong to the employer, not you. However, if you create work not specified in the "work for hire" agreement, then you own full copyright of the work, not the employer. 

Insider Tip 2: If another freelance writer hires you under a "work for hire" to create a series of articles, then all rights belong to the freelancer, not you, even though you are a freelancer yourself. The transfer of copyright is automatic. 

U.S. copyright laws only allow works to become "works-for-hire" under specific circumstances:

1. Prior to the freelancer starting the work, both parties must sign a document agreeing that the job is a work-for-hire. Usually this document is called a "Work for Hire" Agreement or Contract.

2. The employer must specially order or commission the freelancer to create the work; the work cannot already exist.

3. The work must fall into one of nine categories: 1) supplementary work, 2) answer material for a test, 3) an instructional text, 4) a compilation, 5) a test, 6) an atlas, 7) a translation, 8) a contribution to a collective work (i.e., magazine, website, journal), or 9) a contribution to an audiovisual work.

Here is a sample WFH Agreement:



Related links:
Publication Rights for Freelance Writers
Free Online Plagiarism Checkers

I welcome your corrections, suggestions, or comments.

Sincerely,
Brian Scott

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