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RGMacEsq
RGMacEsq, Attorney
Category: Business Law
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Experience:  Licensed Texas General Practice Attorney
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If an editorial/conent assignment/agreement simply says, this

Resolved Question:

If an editorial/conent assignment/agreement simply says, "this is a work for hire" anywhere within the agreement -- is that enough to define the agreement as one that buys all rights -- leaving the creator with no claim of copyright?

Is this phrase enough?

Work(s) shall be considered made-for-hire under the United States Copyright Act.

Would the above sentence in an assignment/agreement also cover photographs submitted and used with the editorial content?
Submitted: 6 years ago.
Category: Business Law
Expert:  RGMacEsq replied 6 years ago.

RGMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

RGMacEsq :

There are only two situations where you can have a work for hire situation (when the copyrighted work would not belong to the author but to the person paying for the content):

RGMacEsq :

(1) The first situation applies only when the work's creator is an employee, not an independent contractor.

RGMacEsq :

(2) the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas; AND the work must be specially ordered or commissioned; AND there must be a written signed agreement between the parties specifying that the work is a work made for hire.



RGMacEsq :

So if the author is not an employee, then for it to be a work for hire ALL THREE of the conditions listed above must be met. If even one is not met, it is not a work for hire.

RGMacEsq :

In terms of the photographs, only if the photographs were taken by the author of the article, or otherwise owned outright (i.e. no license) would the photographs be subject to such a work for hire situation as well.

RGMacEsq :

Now the employer and the independent contractor can still enter into an agreement for the transfer of the copyright. Work for hire only says who owns the copyright from the beginning. If work for hire does not apply, the employer can still get the rights, but would have to get an assignment of these rights from the copyright holder.

RGMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!

RGMacEsq and other Business Law Specialists are ready to help you
Customer: replied 6 years ago.

Hi:

 

I'm not following your statement "RGMacEsq :

So if the author is not an employee, then for it to be a work for hire ALL THREE of the conditions listed above must be met. If even one is not met, it is not a work for hire."

 

Which three conditions are you referring to?

 

As a freelancer, I have publishers try to buy all right from me, often, by saying in my assignment sheet/agreement -- that the work being contracted is a "work for hire". And, they tell me this means they are buying all rights -- essentially my copyright.

 

My concern is -- if I'm sloppy and don't read every word of an agreement and the phrase "this is a work for hire" is included -- have I lost my copyright/ownership to the work?

Expert:  RGMacEsq replied 6 years ago.
The three conditions, as a freelancer (i.e. independent contractor) are [1] the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas; AND [2] the work must be specially ordered or commissioned; AND [3] there must be a written signed agreement between the parties specifying that the work is a work made for hire.

Now if there is an assignment, that is not a work for hire, but essentially is the same thing... Work for hire means that they own it from the beginning (that you never owned it, ever), but an assignment means that they still own it, but you owned it first and then assigned it to them.

I hope that clears things up. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!
Customer: replied 6 years ago.

I get it. Sorry. I didn't read well enough. As to assignment -- we're using it in different context -- but I understand what you're say.

 

When I get an assignment -- as a journalist -- it's to cover a story. I don't mean to "assign" my work/copyright.

 

So, from what you're saying -- my understanding is -- if the agreement says, "work for hire" that language would supercede any other language and is the key phrase to look for -- other than "we're commissioning all ownership/copyrights".

 

My concern is how entities use work for hire with folks who don't know what the phrase means and don't understand what they're giving up.

 

So, I've got it. Thank you.

Expert:  RGMacEsq replied 6 years ago.
Actually, the language "work for hire" is only one part of it (the agreement, which needs to be signed by both parties). The other two (commissioned, and one of the 9 categories) still need to be met as well.

If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!