Mikey McMichaels wrote:

What do you believe is the difference between and exclusive usage agreement and a work for hire agreement?


There are lots of jobs done as buyouts, so it's self-sabatoging to rule them out by default. The deal being offered is either good or bad.


One thing you have to realize about work for hire agreements from big companies is they can come from the company getting screwed. They have a lawyer advise them on how to avoid the same problem happening again, so they make an iron clad internal policy that everything is a work for hire. It's not as much that they want the rights it gives them as they want to get the photos made, use them as planned and not ever have a need to waste any time on cooyrigt issues and licensing. They're asking for it because it simplifies things for them.

That doesn't make it right, but when it trickles down to the employee who's responsible for the administrative part who's told they must get this signed, resistance is the kind of headache that will stop you from getting hired.


You should ask yourself what percentage of your income comes from relicensing photos from a paid shoot and how much you've lost from having an opportunity to license photos you already shot as a paid job, but couldn't because you'd done a work for hire agreement.

Now compare that amount of money the your rate for a single photo job - which is higher?

Now add up the money you make from repeat business or referrals from clients. Or look at the percentage of jobs that lead to a second or a referral.

In 2014 at least 99% of photographers will make more money accepting work for hire jobs than turning them down.

exclusive their is a time period for exclusivity
Signing your rights away is a whole other things
You might make money upfront but lose at the end
I do not believe 99% will make more money accepting work for hire. Can you post those facts your stating? Or did you make that # up?

Karl JW Johnston wrote:

I'm gonna throw a curveball at you and take this seriously for a second...think about what you just said right there. Are they hiring you for your photos...or are they hiring you for your ability to give them what they want in a way they want it? There's a difference. Where is the money really coming from and why?

Same difference

A-M-P wrote:
For the right amount of money I would sign it. Specially if the images I produce for said  shoot are pretty much of no use to me afterwards.

+1

Knowing and negotiating this upfront is the key. Ask about usage, terms etc. before the shoot.

If the client doesn't state it, the photographer needs to be the one asking the right questions before pricing and scheduling the shoot.

Yani S wrote:
They paid me good

They paid you.
They have the images, you don't.
What difference does it make if you sign or not?
(You should have seen this coming when they insisted that you use their camera.)

Ledo retouch wrote:

I have signed them before, and would again. Many were youth sports events,
two were graduation ceremonies, signing was just a formality, I had no desire
to get into a pissing match.

Your right to sign it. Get in get out get it!
That attitude about pissy match is disturbing to me. Seems like a lot of us Americans won't stand up for whats right. Our rights are slipping and its going to end bad for us. Its already showing, sometimes a pissing match is what you have to do to protect yourself. Put other ways about going about it to be more civil.

Loki Studio wrote:

When you accept work without specific terms then you accept the problems that come with it.  Nothing is ever so rushed that you cannot send the client an email to confirm terms.  Don't complain here when the job should be carefully defined but you choose otherwise. 

I have signed WFH and other terms from the Client when it was negotiated up front.  On being asked to sign a WFH agreement after the job is completed, you should be able to say that no-WFH was not the terms of your gig as agreed here.  What are you going to say when there are no terms?

Your right!
Not complaining, trying to learn how others handle it and if someone else learns from this its good to put it out there. I am sharing experience which can hopefully benefit us all!

Instinct Images wrote:
Let me see if I can sum up the OP: "I was told by someone that Work for Hire is evil but I can't remember why but I would never sign a Work for Hire contract because I'm an artist!".

Did I miss anything?

Work for Hire isn't art or at least it's not the photographer's art. It's shooting what you're told to shoot the way the person hiring you wants it shot. Pretty simple really.

My only deciding factor would be whether the money I was being paid made it worth my time and effort.

When I looked into work for hire it was many years ago. Never need to cross that bridge. Now I do so Im just asking other who have as well and what they think is all!

A-M-P wrote:
For the right amount of money I would sign it. Specially if the images I produce for said  shoot are pretty much of no use to me afterwards.

fair enough

Mark Salo wrote:

They paid you.
They have the images, you don't.
What difference does it make if you sign or not?
(You should have seen this coming when they insisted that you use their camera.)

really I guess Im not as good as you at figuring people want to screw me over.
They want me to sign it. Yes I got paid and I will send them my own paper work now. If I want to work with them again I will have to sign their work for hire agreement. Money is good but so are my other jobs. So I ll decide after some research. If I am wrong I am wrong. I don't mind admitting when I made a mistake.

AJScalzitti wrote:
Work for hire, not so much.  Most of the time it's a way to get the copyright without paying a decent amount for it.  Now if the price was right and I would have no use for the images I may, but at that point it really would be the same as a straight buy out.

It is a buyers market, and I have seen many opportunities to sell images to another buyer that were not used by the first.  If that was done as work for hire then that would be a loss for the photographer.

I think you would find very different feedback if you asked this question to some other industries who have been ruined by work for hire; ask someone in the music industry or that author who wrote "vampire diaries" and "the secret circle" about it and how she isn't getting paid for those TV shows...

Good points
Ya kinda what I don't want to happen to other photographers. But here it seems like no one really cares.

Yani S wrote:
So for you, its ok to give up your rights for a paycheck?

In some cases, yes. I shoot for a company out of Japan from time to time who book wedding packages for their locals to come to Las Vegas and get married as part of a wild Vegas experience. It's a work-for-hire arrangement and they retain 100% of the rights and I am not allowed to use any of the photos in my portfolio at all. The way it works is they have a convertible Mustang here in town and a tour guide/translator, to work with the couple and get them around and such. I'm hired to shoot the weddings in our famous drive-through wedding chapel while they sit in the car and get married. Rarely do the bride and groom speak a word of English and they routinely ask me to shoot in the most non-creative fashion imaginable. Per Japanese culture, they don't like any creative angles or creative photography of any kind for that matter. Every shot is square to the subject from the front, back, and sides. All of the resulting photos are super boring, uninteresting in any way, and they LOVE them. These couples and the company who hires me thinks my photos I shoot for them are just outstanding and I wouldn't have them near my portfolio with a 10 foot monopod. At the end of the shoot, I Dropbox the photos to them and I'll never look at them again.

I truly could not care less that this is a work-for-hire situation and I will never use any of these photos in any way, shape, or form. The fact that I don't own the rights to them doesn't bother me in the least.

You have to choose your battles Yani. You can shake your fist in the air all you like and bark at the sky about your rights and how it hurts the industry all you want. There will then be some of us who see the situation for what it is, think you're nuts, and thank you for the easy business.

Eric Jones wrote:
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made
for hire” in two parts:
A- a work prepared by an employee within the scope of his or her employment
or
B- a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas

Work for hire agreements were largely shot down years ago by the Supreme Court as a veiled attempt by companies to circumvent copyright laws. In response, the IRS issued a ruling that if the 'client' acquires all the rights, then they are actually your employer and must submit payroll taxes and Social Security on your behalf (Section A above).

The client will claim you're an independent contractor, but the IRS test of whether or not you are is partly determined by whether you retained some of the copyrights. If not, you are deemed an employee. You also indicated that you did not supply your own equipment, which is crucial for maintaining status as a 1099 independent contractor.

So unless your work falls into one of the nine specific categories listed under Section B above, you can rip that agreement up because it won't stand up in court.

Eric, you are completely right.  Unfortunately, it doesn't matter.  Whether or not something holds up in court is only relevant if you can afford to take it to court.  And as I'm sure you know, 'having the money' and 'being able to afford to spend it' are often worlds away.

I wonder if you'd even need to ask the hiring company to alter their standard work-for-hire agreement?  It might be sufficient to have a second form that essentially says, "The photographer is licensed to use any images from shoot X on date Y, contract number Z, for any portfolio or personal display."

If the reason for the work-for-hire agreement is because 'it's the way we do business', then adding an extra form that they don't need to draw up themselves, and which doesn't require altering their existing paperwork or systems, might be the way to go.

RennsportPhotography wrote:
I think that the whole "work for hire" thing is really misunderstood and CA in particular has specific rules on it as you are agreeing to be an "employee" rather than a contractor and that has legal and tax consequences.

Now you can of course agree to almost anything but it important to know what you are agreeing to before you do so.
http://www.aphotoeditor.com/2013/06/19/ … greements/

Requirements for work for hire:
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made
for hire” in two parts:
a a work prepared by an employee within the scope of his or her employment
or
b a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas,
if the parties expressly agree in a written instrument signed by them that the
work shall be considered a work made for hire.
http://www.copyright.gov/circs/circ09.pdf

This is a critically important post so I hope that everybody reads it carefully.  It covers two important issues.

First, as an independent contract, not all situations qualify as "work for hire" even if there is a work for hire agreement in place.  Put another way, just because you call something a "work for hire" agreement (technically it is "work made for hire"), that doesn't mean that the copyright will actually belong to the person that contracted you.  The Copyright Act has set forth limited situations where "Work Made for Hire" can be applied.  When those criteria are not met, if you truly want the copyright to rest with the person that hired you, there has to be an "assignment" covenant rather than a "Work Made for Hire" agreement.

Second, CA has some very strict rules relating to a "Work Made for Hire" agreement.  Essentially, the State of California considers that one that executes a work made for hire agreement is then an employee.  That means they must be treated as an employee.  That means taxes, worker's comp, etc, etc, etc.  Failure to do so calls the entire agreement into question since it is in conflict with statute and public policy.

The exception is when the photographer is incorporated or an LLC.  The reason is that a legal business entity cannot be an employee under the law.  That doesn't apply to a "Sole Proprietorship."  It is all complex, I realize that and I don't want to turn this into a legal thread.  I did want to point out that this response raised some very serious and legitimate issues.

That having been said, for the OP, I see two real issues.  First, the idea that the client would own the copyright was raised after the job started.  That is always a problem for me.

Second, the issue is who should own the copyright.  It is nice to retain it, but if I am paid properly, I have signed it over many times.  I can use a good paycheck a lot more than I can use a few more images in my online portfolio.  To me it is about fair negotiations and proper payment.

Eric Jones wrote:
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made
for hire” in two parts:
A- a work prepared by an employee within the scope of his or her employment
or
B- a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas

Work for hire agreements were largely shot down years ago by the Supreme Court as a veiled attempt by companies to circumvent copyright laws. In response, the IRS issued a ruling that if the 'client' acquires all the rights, then they are actually your employer and must submit payroll taxes and Social Security on your behalf (Section A above).

The client will claim you're an independent contractor, but the IRS test of whether or not you are is partly determined by whether you retained some of the copyrights. If not, you are deemed an employee. You also indicated that you did not supply your own equipment, which is crucial for maintaining status as a 1099 independent contractor.

So unless your work falls into one of the nine specific categories listed under Section B above, you can rip that agreement up because it won't stand up in court.

Zack Zoll wrote:
Eric, you are completely right.  Unfortunately, it doesn't matter.  Whether or not something holds up in court is only relevant if you can afford to take it to court.  And as I'm sure you know, 'having the money' and 'being able to afford to spend it' are often worlds away.

I wonder if you'd even need to ask the hiring company to alter their standard work-for-hire agreement?  It might be sufficient to have a second form that essentially says, "The photographer is licensed to use any images from shoot X on date Y, contract number Z, for any portfolio or personal display."

If the reason for the work-for-hire agreement is because 'it's the way we do business', then adding an extra form that they don't need to draw up themselves, and which doesn't require altering their existing paperwork or systems, might be the way to go.

That is true, but ... it is the person who employed him that would have take the OP to court, not the other way around.  If the client wanted to assert ownership of the copyright, they would have to sue the OP for infringement and then demonstrate that the "work made for hire" agreement was enforceable. 

The question is if they would.  If the OP has business insurance, it is possible that his insurance company would defend him for that kind of claim.  Without reading his policy, we don't know, but I think you are looking at the issue backwards.

GPS Studio Services wrote:
d


This is a critically important post so I hope that everybody reads it carefully.  It covers two important issues.

First, as an independent contract, not all situations qualify as "work for hire" even if there is a work for hire agreement in place.  Put another way, just because you call something a "work for hire" agreement (technically it is "work made for hire"), that doesn't mean that the copyright will actually belong to the person that contracted you.  The Copyright Act has set forth limited situations where "Work Made for Hire" can be applied.  When those criteria are not met, if you truly want the copyright to rest with the person that hired you, there has to be an "assignment" covenant rather than a "Work Made for Hire" agreement.

Second, CA has some very strict rules relating to a "Work Made for Hire" agreement.  Essentially, the State of California considers that one that executes a work made for hire agreement is then an employee.  That means they must be treated as an employee.  That means taxes, worker's comp, etc, etc, etc.  Failure to do so calls the entire agreement into question since it is in conflict with statute and public policy.

The exception is when the photographer is incorporated or an LLC.  The reason is that a legal business entity cannot be an employee under the law.  That doesn't apply to a "Sole Proprietorship."  It is all complex, I realize that and I don't want to turn this into a legal thread.  I did want to point out that this response raised some very serious and legitimate issues.

That having been said, for the OP, I see two real issues.  First, the idea that the client would own the copyright was raised after the job started.  That is always a problem for me.

Second, the issue is who should own the copyright.  It is nice to retain it, but if I am paid properly, I have signed it over many times.  I can use a good paycheck a lot more than I can use a few more images in my online portfolio.  To me it is about fair negotiations and proper payment.

And a fine reason why a photographer should form a trust to hold their copyright and it's IP, because if they are incorporated then the corp or LLC may be the holder.  Not a good thing in the advent of litigation

Barry Kidd Photography wrote:
I avoid work for hire whenever possible but for some jobs there is no reason not to.  For example I shot evidence photos.  It's not only unethical for me to use them but in some cases illegal even if I retain the copyright.  No point in not signing a work for hire agreement with stuff like that.

For other jobs --- you never know what you may be able to license for use later on.  Though I don't licence existing photos often I have, do and will do so again. People will sometimes licence the damndest things.  If I only did work for hire I'd of never made extra income from photos that would otherwise just be collecting dust in my archives.

Good points

Al Lock Photography wrote:
I won't sign work for hire. They can buy the copyright, they can pay for an exclusive license in perpetuity, but I won't sign work for hire. And for their benefit as well as mine - "work for hire" implies that you are an employee - and there is no way to know when labor or employment law will change that impacts your or their status (taxes or otherwise) in that regard. When I explain it that way? Very few clients still want me to sign (single exception was Conde Nast years ago, I refused. Never worked for them again - which I don't regret in the slightest).

Never thought of it that way. I can see that and I might use that next time since that is possible

Eric Jones wrote:
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made
for hire” in two parts:
A- a work prepared by an employee within the scope of his or her employment
or
B- a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas

Work for hire agreements were largely shot down years ago by the Supreme Court as a veiled attempt by companies to circumvent copyright laws. In response, the IRS issued a ruling that if the 'client' acquires all the rights, then they are actually your employer and must submit payroll taxes and Social Security on your behalf (Section A above).

The client will claim you're an independent contractor, but the IRS test of whether or not you are is partly determined by whether you retained some of the copyrights. If not, you are deemed an employee. You also indicated that you did not supply your own equipment, which is crucial for maintaining status as a 1099 independent contractor.

So unless your work falls into one of the nine specific categories listed under Section B above, you can rip that agreement up because it won't stand up in court.

Hmmm… might explain why she wanted me to use her camera instead of mine. Thought it was weird but though hey I get to try a canon for once
I like to research this more. Any links?

GPS Studio Services wrote:
d


This is a critically important post so I hope that everybody reads it carefully.  It covers two important issues.

First, as an independent contract, not all situations qualify as "work for hire" even if there is a work for hire agreement in place.  Put another way, just because you call something a "work for hire" agreement (technically it is "work made for hire"), that doesn't mean that the copyright will actually belong to the person that contracted you.  The Copyright Act has set forth limited situations where "Work Made for Hire" can be applied.  When those criteria are not met, if you truly want the copyright to rest with the person that hired you, there has to be an "assignment" covenant rather than a "Work Made for Hire" agreement.

Second, CA has some very strict rules relating to a "Work Made for Hire" agreement.  Essentially, the State of California considers that one that executes a work made for hire agreement is then an employee.  That means they must be treated as an employee.  That means taxes, worker's comp, etc, etc, etc.  Failure to do so calls the entire agreement into question since it is in conflict with statute and public policy.

The exception is when the photographer is incorporated or an LLC.  The reason is that a legal business entity cannot be an employee under the law.  That doesn't apply to a "Sole Proprietorship."  It is all complex, I realize that and I don't want to turn this into a legal thread.  I did want to point out that this response raised some very serious and legitimate issues.

That having been said, for the OP, I see two real issues.  First, the idea that the client would own the copyright was raised after the job started.  That is always a problem for me.

Second, the issue is who should own the copyright.  It is nice to retain it, but if I am paid properly, I have signed it over many times.  I can use a good paycheck a lot more than I can use a few more images in my online portfolio.  To me it is about fair negotiations and proper payment.

Ok let me get this straight if I sign a work for hire it means Im there employee? But if I have my own LLC which I do. What does that mean that work for hire is null?

AJScalzitti wrote:

And a fine reason why a photographer should form a trust to hold their copyright and it's IP, because if they are incorporated then the corp or LLC may be the holder.  Not a good thing in the advent of litigation

Ok you lost me. Can you break that down?

Yani S wrote:
Ok let me get this straight if I sign a work for hire it means Im there employee? But if I have my own LLC which I do. What does that mean that work for hire is null?

You owning an LLC for your photography business has nothing to do with you acting in a work-for-hire position as a photographer for something else. I'm not sure why you would even conclude that.

If you owned an LLC for a bakery, would that be a legal conflict for you taking a job as a photographer? Of course not. They are different situations dealt with differently.

Shot By Adam wrote:
You owning an LLC for your photography business has nothing to do with you acting in a work-for-hire position as a photographer for something else. I'm not sure why you would even conclude that.

If you owned an LLC for a bakery, would that be a legal conflict for you taking a job as a photographer? Of course not. They are different situations dealt with differently.

One that was a questions not to you. It was a Q to form a conclusion not the conclusion. So read the statement given from the poster and you will understand why I ask the poster that Q. You need to read it in its entirety.

BCADULTART wrote:
I've signed two "Work for Hire" (WH) agreements and both times I was paid A LOT of $.  One of those two was for photographing a Top female singer for her record company and I told them I would shoot the tour for free if I could license the images myself or through my agency.  The other was for a large multi-national corporation.  Both times I was paid over five times my highest day rate plus expenses.

A few weeks ago I was asked to sign another WH and I asked them to have the truck full of USD delivered to my house along with the contract and after all the money has been counted I would sign.....

Seriously, it is never good to give away your rights as a photographer and almost every time I've been asked to sign a WH, the person (client) did not really understand what they were asking for and in the end they did not need "All Rights" to the images.  In the two cases mentioned above they really did need all rights and they were willing to pay for those rights and usages.

Sounds fair! Good job!

Yani S wrote:

One that was a questions not to you. It was a Q to form a conclusion not the conclusion. So read the statement given from the poster and you will understand why I ask the poster that Q. You need to read it in its entirety.

Sorry Yani but it's next to impossible for me to ascertain half the stuff you are writing about as your spelling and grammar are just atrocious. Seriously, is English your second or third language or something?

Yani S wrote:

No contract, this was never the issue for thousands of jobs like this.
Yes she sprung this at the end of the shoot and since its never come up. it got me by surprise!
If I did it again with her I would ask for a hire price for exclusive ownership. But the company won't pay. Ive gotten the highest amount already from the budget.
Would you have signed it?

For me, the thing about working with her is your statement, "Yes she sprung this at the end of the shoot and since its never come up. it got me by surprise!"

That doesn't go very far in trusting her in future shoots that she will not find someway to screw you over.  That would be the main reason I might not want to work with her in the future.

The whole Work for Hire thing is a business decision, do you work that way or not.

BCADULTART wrote:
I've signed two "Work for Hire" (WH) agreements and both times I was paid A LOT of $.  One of those two was for photographing a Top female singer for her record company and I told them I would shoot the tour for free if I could license the images myself or through my agency.  The other was for a large multi-national corporation.  Both times I was paid over five times my highest day rate plus expenses.

A few weeks ago I was asked to sign another WH and I asked them to have the truck full of USD delivered to my house along with the contract and after all the money has been counted I would sign.....

Seriously, it is never good to give away your rights as a photographer and almost every time I've been asked to sign a WH, the person (client) did not really understand what they were asking for and in the end they did not need "All Rights" to the images.  In the two cases mentioned above they really did need all rights and they were willing to pay for those rights and usages.

A WH agreement is not the same as an all rights transfer. WH can only transfer usage in 9 approved categories previously mentioned here.

The category of use that you described is not eligible for Work For Hire under the copyright laws. I assume the photos are not being used for an encyclopedia or educational textbook. Based on your description the client did not acquire any rights to advertising or packaging use.

Funny thing about copyright laws… they are actual federal statutes, not governed by somebody's personal opinion or corporate policy. Your client has two methods of acquiring the rights they need- hire you as an employee and pay the payroll taxes, or purchase the rights from you for the correct usage categories, time period and geographic area spelled out in writing.

The government creates and enforces these laws because they are good for our national economy. Ironically, the worst offenders are often companies whose very existence depends on strong enforcement of copyright laws, like record companies.

Capitol City Boudoir wrote:
I sign work for hire agreements all of the time.

I was recently hired to photograph some state-of-the-art equipment in a large distribution warehouse.  They required a Work for Hire contract to insure that they had exclusive and perpetual ownership of the work.  They also required a non-disclosure and other agreements as well.

I just build it into the cost when I bid a job.  No big deal.

When I hire a 1099 first assistant to work with me on a job, I require work-for-hire, non-disclosure and non-compete agreements from them.  I have no trouble hiring assistants even with these requirements.

Yes, that may be what you are doing . . . but it's not legal and won't hold up, because the prior insurance and employee requirements have not been met.

KM

GPS Studio Services wrote:
d


This is a critically important post so I hope that everybody reads it carefully.  It covers two important issues.

First, as an independent contract, not all situations qualify as "work for hire" even if there is a work for hire agreement in place.  Put another way, just because you call something a "work for hire" agreement (technically it is "work made for hire"), that doesn't mean that the copyright will actually belong to the person that contracted you.  The Copyright Act has set forth limited situations where "Work Made for Hire" can be applied.  When those criteria are not met, if you truly want the copyright to rest with the person that hired you, there has to be an "assignment" covenant rather than a "Work Made for Hire" agreement.

Second, CA has some very strict rules relating to a "Work Made for Hire" agreement.  Essentially, the State of California considers that one that executes a work made for hire agreement is then an employee.  That means they must be treated as an employee.  That means taxes, worker's comp, etc, etc, etc.  Failure to do so calls the entire agreement into question since it is in conflict with statute and public policy.

The exception is when the photographer is incorporated or an LLC.  The reason is that a legal business entity cannot be an employee under the law.  That doesn't apply to a "Sole Proprietorship."  It is all complex, I realize that and I don't want to turn this into a legal thread.  I did want to point out that this response raised some very serious and legitimate issues.

That having been said, for the OP, I see two real issues.  First, the idea that the client would own the copyright was raised after the job started.  That is always a problem for me.

Second, the issue is who should own the copyright.  It is nice to retain it, but if I am paid properly, I have signed it over many times.  I can use a good paycheck a lot more than I can use a few more images in my online portfolio.  To me it is about fair negotiations and proper payment.

Yani S wrote:
Ok let me get this straight if I sign a work for hire it means Im there employee? But if I have my own LLC which I do. What does that mean that work for hire is null?

The issue has to do with California Labor Law.  If an individual signs a "work for hire" agreement, the State of California will then treat the person as an employee.  A "work for hire" agreement, would then be valid if the client treated you as an employee, withholding taxes, providing worker's comp, declaring you on their unemployment insurance, etc, etc, etc.  IF they failed to do that, the "work for hire" agreement could be invalid and there could be California Labor issues.

If you are an LLC, none of what I have said regarding California Labor Law applies to you.  An LLC can't be an employee therefore a "work made for hire" agreement, could be enforceable. 

There is still the issue that "work made for hire" can't be applied to all situations.  That means, if the criteria are not all met, even if you've signed a "work made for hire" agreement, you may still, to the dismay of the client, hold the copyright.  As an LLC though, the California Labor Law issues don't apply to you.

Again, remember, I am not an attorney.  This is not legal advice.  You need to speak with an attorney to figure out how this applies to your situation.

Ken Marcus Studios wrote:
California state law prohibits transferring copyrights from the author/creator to a client under “Work for Hire” agreements unless the creator is also treated as an employee.

This means the client will need to carry workers compensation insurance and unemployment insurance for the photographer, and may even have to withhold federal and state taxes from any payments made to you.

California law (Labor Code 3351.5 (c))also requires that insurance be purchased and in place before you sign a Work for Hire agreement, before any work is done, and before any payment is made.

Without these criteria being in place, there is not a legal 'work for hire' agreement.

So we are clear, that applies only to individuals.  It doesn't apply to an LLC or Corporation.  The OP has stated that he operates as an LLC.

Also, California doesn't prohibit the transfer of the copyright.  California treats those agreements as employment agreements.  It triggers the things you have listed.  There is no direct prohibition.

You are correct though as to the effect.  If the client doesn't treat the individual as an employee, the act itself could become unlawful which would then could void the work for hire agreement.

Again, the disclosure, I am not an attorney.

Ken Marcus Studios wrote:

Yes, that may be what you are doing . . . but it's not legal and won't hold up, because the prior insurance and employee requirements have not been met.

KM

KM is right, your client did not acquire "exclusive and perpetual ownership of the work" because you did not sign a copyright transfer. They might think they own all rights but, if they make this claim, the IRS may decide that they are engaged in tax evasion.

Many companies are not aware. Even with all their $$$ and teams of lawyers, Microsoft found themselves on the losing end of this discussion. They were forced to pay millions in back taxes and penalties for their work-for-hire programmers. The IRS ruled that without the taxes, the copyrights for Windows and other Microsoft products actually belonged to the freelancers, not the corporation.

Shot By Adam wrote:

Sorry Yani but it's next to impossible for me to ascertain half the stuff you are writing about as your spelling and grammar are just atrocious. Seriously, is English your second or third language or something?

Ok then please don't comment and just skip. Your are now going off topic.
Others are answering fine. If you want to keep talking about my spelling powers then just send me a private message.
thank you