When negotiating an entertainment related contract, anything can happen (I’d love to spend this blog post telling you all the crazy stories that came to mind when I wrote that line, but that wouldn’t be very informative and might get me sued for defamation). One thing that almost always happens, however, is an argument regarding copyright ownership, and that argument usually centers around the inclusion of a Work for Hire clause.
The words Work for Hire seem to be almost universally hated. Artists see it as a disadvantage no matter what the situation, and they can hardly be blamed. A Work for Hire clause or agreement requires one party to give up rights to intellectual property, and no one likes to give things up. And the numerous articles and blog posts imploring artists not the sign Work for Hire agreements would give anyone the impression that there is never a good reason to do so. Clients on the business end of the entertainment industry also express discomfort with the Work for Hire. Knowing it is likely to cause a problem, they often ask me to “say it some other way” or “make it friendlier.”
Unfortunately, a Work for Hire clause can’t be stated another way, or made much friendlier, because it only works if it jumps off the page, yelling “I’m a Work for Hire and you’re giving up your rights.” That’s a good thing, because it prevents people from being tricked into signing away their rights. The main problem with the Work for Hire clause, in my opinion, is misunderstanding.
The reason the Work for Hire clause is often necessary is that, without a Work for Hire clause, collaborators on a project become equal owners, with equal rights to sell and otherwise encumber the whole project, and equal rights to collect money from the project. This happens whenever two or more authors prepare something with the intention that their contributions be merged into inseparable or interdependent parts of a whole.
This arrangement is fine if you are truly collaborating with a partner or several partners, and you intend to share equally in the final project. Many collaborations, however, are not set up that way. Often, one or more parties gets paid up front for their work on a project, while the person or entity that hired them takes a risk on its eventual success. An unequal division of rights, in that situation, may be more fair than a 50/50 split. The same goes for situations where one party will be solely responsible for selling a project. Without the Work for Hire, there is no guarantee of exclusivity.
The lesson to take away from this (very abbreviated) explanation of the Work for Hire clause, is that whether to include it (or whether to sign it) turns on your intentions with regard to the final product. If you intend to be an equal owner, no Work for Hire is necessary. But, if you intend to have anything other than a 50/50 division of rights, the Work for Hire is the only way to make your arrangement enforceable. That can be to the benefit of both parties. The point, as in all contract negotiations, is to understand and accept the contract terms before you sign the contract.