Me. Always insert in your contract or notes exchanged between you and
the client those hand car dealer words: As Is. Meaning this story in
this exact form only, in case that short story grows into a novel or
three or a screenplay, etc.
=========================================
Q: I was hired to work on a film as a DP and the contract stated
that it was a “work for hire.” I’ve seen that in a bunch of employment
contracts, but I never really understood what it meant. Can you shed
some light on it?
The work for hire (WFH) doctrine deals with your ownership rights
over the copyright to any work you produce for someone else.
Unfortunately, it’s so often misunderstood by both employees and
employers that I think people get it wrong more often than they get it
right. And since most filmmakers make their living by creating their
work on someone else’s dime, they rely heavily on the WFH doctrine, even
if the terms “work for hire” or “work made for hire” are never uttered.
So to clarify things, here’s a brief primer on WFH. Buckle up, it’s
about to get informative!
What Is Work For Hire?
The WFH doctrine is a very specific legal principle that arises
under U.S. copyright law. The basic premise is that in certain
situations, an employer will automatically own the copyright to work you
do for them as a matter of right. But the manner in which an employer
can assert that right depends heavily on whether you’re hired as an
employee or an independent contractor.
The Employee Work For Hire
If you’re hired as an employee, the work you create for your employer
doesn’t belong to you, it automatically belongs to the employer. End of
story. In employment situations, the ownership of copyright is not
determined by the artist’s handiwork; it’s determined by the motive and
desire of the employer. How will you know if you’re in an employment
situation?
Look for the traditional trappings of employment: salary,
benefits, co-workers, office, boss, limited control over your work, etc.
If you find yourself in this situation, the only way you can retain the
copyright to work you’ve created is if the employer gives it to you in
writing.
For example, if you’re hired as a full-time editor at a production
company, any work you do within the scope of your employment (i.e.
editing, color correction, mixing) will automatically be owned by the
production company. This, by the way, may also extend to work you create
outside your employment too, especially if that outside work falls
within the scope of work you would have created for the employer.
But you and I both know that most filmmakers don’t work as employees;
more often than not they work as freelancers. And when you’re hired as a
freelancer, the rules change dramatically.
The Independent Contractor/Freelancer Work For Hire
If you’re hired as an independent contractor or freelancer, the
employer will own the copyright to your work only if all of these
requirements are met:
1. The work is custom-ordered or commissioned;
2. Both parties agree in writing that it’s a work for hire;
3. The work falls into one of these nine categories: a contribution
to a collective work, a part of a motion picture or other audiovisual
work, a translation, a supplementary work, a compilation, an
instructional text, a test, answer material for a test, or an atlas.
If you’re a freelancer and just one of these requirements isn’t met,
it isn’t a WFH and you keep the copyright. One of the biggest
misconceptions I see with freelancers is that they usually assume once
the work is complete, they no longer have ownership rights and walk
away, not realizing that they still own the copyright.
So for example,
if you’re hired as a cinematographer on a film, as long as you and the
employer agreed in writing that it’s a WFH, the copyright will be owned
by the employer, since film is always a custom job and is one of the
nine categories specified under copyright law.
How will you know if you’re an independent contractor? Look for
factors like like greater control over the work, using your own
equipment, working out of your own home or office, working on your own
time, employment end dates, words like “freelance” or “independent
contractor,” etc.
Moving Forward
Believe it or not, it’s not always easy to tell whether you’re an
employee or an independent contractor, and you and the employer may have
different views on it. In many cases, you might find that the employer
refers to you as an “employee” even though from the outside it looks
like you’re a freelancer. Maybe you work in the employer’s office and
you receive a salary, but you’re using your own gear and set your own
hours. How do you deal with an employment situation where it’s unclear
what your status is?
Clarity is the antidote to that kind of ambiguity. Every employment
contract should state whether, a) you’re being hired as an employee or a
contractor, and b) whether you or the employer retains the copyright.
In fact, WFH can get so muddled that I’ve stopped using the term in any
contract I draft. I simply state which party retains the copyright
because the actual words “work for hire” can cause more confusion than
they resolve.
Film producers, take note: Be clear and concise when hiring. It’ll
help avoid any copyright ownership conflict down the road. If you’re a
filmmaker looking to get hired on your next job, make sure you discuss
what to do with that copyright in every contract you sign with an
employer. You will probably have to give it up in the end, but that’s
the price for continuing to work in a field you love. And if you’re an
employee in the film industry where job security is scant, you may not
own the copyright to your work, but you can take solace in the fact that
you have a steady job.
MM
Have a legal question you want our advisers to answer in a future installment of Cinema Law? Send it into staff@moviemaker.com with the subject line “Cinema Law Question.”
Gregory R. Kanaan, Esq. is a Boston-based attorney representing
artists, filmmakers and designers in Massachusetts and New York. His
practice focuses on entertainment and art law, as well as intellectual
property issues. He has resolved disputes involving copyrights,
publicity rights, trademarks, and contractual disputes for a wide range
of independent filmmakers and design professionals.
Prior to becoming an
attorney, Mr. Kanaan was a television producer, creating documentaries
and series for The Discovery Channel, Court TV, TLC, and A&E, among
others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.
The answers to legal questions provided here are for general
education and information purposes only, and are not legal advice or
legal opinions. The information provided in this article is not intended
to create a lawyer-client relationship between Mr. Kanaan and a reader.
Image photographed by Mark Simakovsky, posted on MovieMaker‘s Instagram.
