L Cowles Photography wrote:

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.

Yes I was thinking the same things. After reading some of you guys comments.

Eric Jones wrote:

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.

Good points Ill keep that in mind!

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.

WoW ok good points I ll write these down too!

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.

Well looks like from many comments that its not a work for hire unless they you or your hire help become employees. So far it looks like you can not legal sign your rights away. This is to protect you. for one I m glad and hate to be extorted into such a clause just to able to work!

GPS Studio Services wrote:

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.

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.

Let me get this straight. So if I do sign a work for hire as a non Corp. Im am protected because unless they make me an employee it makes it void.
But If I am an LLC I basically screwed myself!?! If everyone of the other things are done. suggesting I have less protection as a LLC Great!

Eric Jones wrote:

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.

WoW!

BCADULTART wrote:
Sorry for the earlier post, I consider "Work-For-Hire" (WH) the same as giving up or signing over the "copyright" along with all rights to a photo or photos from a shoot, that is not a correct assumption on my part.  The post I made earlier was about signing over the copyright along with all film or digital captures created during the shoot.  I do understand that there are many facets to WH and I am not a lawyer, so I simply do not hand over unlimited use or all use, copyright, etc. without very generous compensation and compelling reason presented by the client.  It is just not good business.

Ya! Im in the same boat. Trying to wrap my head around this part of photography business. It used to be simply when it was done for fun and TFs only. lol

GPS Studio Services wrote:



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.

Alright so I didn't sign it and have been paid. But I did promise her I would send over exclusive usage contract which I have no problem with. I don't have one though that encompasses everything. Print, Digital web usage etc… Anyone have one of these or know where to get one???
Thanks!!!

GPS Studio Services wrote:



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.

Yani S wrote:
Alright so I didn't sign it and have been paid. But I did promise her I would send over exclusive usage contract which I have no problem with. I don't have one though that encompasses everything. Print, Digital web usage etc… Anyone have one of these or know where to get one???
Thanks!!!

The only advice I am going to give you is to be careful as to how you design the term "Exclusive usage contract."  It is actually an exclusive license.  In most cases, if you sign over the exclusive use, it is effectively the same as transferring copyright.   Indeed, if one holds the exclusive rights to usage for an image, they may register the image themselves with the copyright office.

That can be avoided if you write in some use by yourself, such as portfolio or promotion.  Then you are merely promising that you won't license the images to anyone else but retain the right to some limited use yourself.  Again though, I am not an attorney but I do see people write these agreements wrong all the time.

It goes to the definition used by the copyright statute for "exclusive rights" and "copyright."

Good luck to you.  I am glad you got paid and didn't have to sign the agreement.

Yani S wrote:
Let me get this straight. So if I do sign a work for hire as a non Corp. Im am protected because unless they make me an employee it makes it void.
But If I am an LLC I basically screwed myself!?! If everyone of the other things are done. suggesting I have less protection as a LLC Great!

I wouldn't say you got "screwed" by being an LLC.  I am assuming you did that for tax purposes or liability purposes.  I hope you didn't do it simply because you read it was a good idea on the forums.

To answer your question though, "work made for hire" is quite definitely treated differently for an individual or an LLC.  I am not sure it is being "screwed" because it is the state's purpose to provide protections to the employee.  It just may not fit well into the business model of a photographer.  Of course, the state also wants its taxes.

GPS Studio Services wrote:

GPS Studio Services wrote:



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.

The only advice I am going to give you is to be careful as to how you design the term "Exclusive usage contract."  It is actually an exclusive license.  In most cases, if you sign over the exclusive use, it is effectively the same as transferring copyright.   Indeed, if one holds the exclusive rights to usage for an image, they may register the image themselves with the copyright office.

That can be avoided if you write in some use by yourself, such as portfolio or promotion.  Then you are merely promising that you won't license the images to anyone else but retain the right to some limited use yourself.  Again though, I am not an attorney but I do see people write these agreements wrong all the time.

It goes to the definition used by the copyright statute for "exclusive rights" and "copyright."

Good luck to you.  I am glad you got paid and didn't have to sign the agreement.

Thanks!
Do you know of place to get a proper paper work on this?

GPS Studio Services wrote:

I wouldn't say you got "screwed" by being an LLC.  I am assuming you did that for tax purposes or liability purposes.  I hope you didn't do it simply because you read it was a good idea on the forums.

To answer your question though, "work made for hire" is quite definitely treated differently for an individual or an LLC.  I am not sure it is being "screwed" because it is the state's purpose to provide protections to the employee.  It just may not fit well into the business model of a photographer.  Of course, the state also wants its taxes.

Yes did it for taxes and went LLC for liability
It was the best one that fit my business model which I looked at them in depth. I would have rather not gone corp. As it has its draw backs but plus out weight those. Might change it to another state though. Caly. is nuts!

Yani S wrote:
Thanks!
Do you know of place to get a proper paper work on this?

The obvious answer is to speak to a lawyer.  If you are looking at online sources, I suggest photoattorney.com, thecopyrightzone.com or asmp.net.   The problem is that, I can't guarantee that the issues that I have suggested will have been contemplated in those agreements.  Often times, when a professional licenses exclusive rights, he has gotten a full buyout and expects to be signing over a lot.

I have no recommendation on where to look specifically for a license that allows you to retain sufficient rights to prevent them from registering the images.  You are just going to have to read through the various sources and come to a conclusion. 

Again, I am not an attorney so I won't advise you as to which form to use.

GPS Studio Services wrote:
I wouldn't say you got "screwed" by being an LLC.  I am assuming you did that for tax purposes or liability purposes.  I hope you didn't do it simply because you read it was a good idea on the forums.

To answer your question though, "work made for hire" is quite definitely treated differently for an individual or an LLC.  I am not sure it is being "screwed" because it is the state's purpose to provide protections to the employee.  It just may not fit well into the business model of a photographer.  Of course, the state also wants its taxes.

Yani S wrote:
Yes did it for taxes and went LLC for liability
It was the best one that fit my business model which I looked at them in depth. I would have rather not gone corp. As it has its draw backs but plus out weight those. Might change it to another state though. Caly. is nuts!

Changing states in California is of no use at all.  Foreign corporations are required to register in the state to do business if they open an office here.  The taxation and forms are essentially the same.  It is a tough state for a business.  I was a sole proprietorship for years and then because a C-Corp not long ago.  It accomplished my purpose but a total pain in the behind.

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.

That's not even close to what work for hire means.

Yani S wrote:

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?

How many times have you been hired by a company to shoot a specific job and then relicensed those photos to a third party?


Let's make it really specific - have you ever shot a job that the client had storyboarded before they come to, and then you relicensed those photos to someone else after the client had used them?

Contexts where a company wants to make the photos works for hire are usually specific content that's unique to them and are useless to everyone else even if they were free.

It's like shooting a wedding and then licensing the photos to a different couple. There's no reason for them to want someone else's wedding photos.

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).

What's the difference between doing a job with a work for hire agreement and selling them the copyright? The answer is nothing, just the language on the paper.


Work for hire does not imply that you are an employee, it definitively says you're not. When you're an employee, the employer owns everything you create, so there's no need to a a work for hire agreement.

A work for hire is a way of saying "You're not an employee, but our terms for the job will be the same as if you were an employee."

Mikey McMichaels wrote:

How many times have you been hired by a company to shoot a specific job and then relicensed those photos to a third party?


Let's make it really specific - have you ever shot a job that the client had storyboarded before they come to, and then you relicensed those photos to someone else after the client had used them?

Contexts where a company wants to make the photos works for hire are usually specific content that's unique to them and are useless to everyone else even if they were free.

It's like shooting a wedding and then licensing the photos to a different couple. There's no reason for them to want someone else's wedding photos.

Yes if I really wanted too. I can make as much money as they do from the photos. But I would not do that for one! Two I would not be trusted and would not get any jobs for any others as well.
Now there are companies that went under that I could use those images as they are not in use and mostly won't be. But then again I don't think I want to chance it.

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.

There are lots of criteria that go into it. Employees don't work one day in a calendar year and then that's it. You are not automatically deems an employee if you don't retain any copyrights.

Jim Lafferty wrote:
I did WFH once because the money was great and I knew I'd never have a use for the photos. If the math works, do it.

true

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?

No. The agreement is just defining who owns the copyright it can not change your employment status.

If you were an employee, they wouldn't need you to sign the work for hire agreement.

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.

Yes, but this is not copyright law it's tax law. The agreement can be legally binding in transferring the copyright, but they would be obliged to pay tax and SS.

The other way it would come into play is if the contractor was injured and need workers comp. When the company tries to argue that they shouldn't have to pay, the agreement is used to prove that they do. It would not undo the transfer of the copyright.

Eric Jones wrote:

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.

The IRS can not rule on copyrights.

What they did was reclassify the contractors as employees and made Microsoft pay the taxes they owed.

Yani S wrote:
Let me get this straight. So if I do sign a work for hire as a non Corp. Im am protected because unless they make me an employee it makes it void.

No. The legal requirements are not to make it valid and they have nothing to do with copyright. They defined the additional things that the hiring party must do if they've used a work for hire agreement.

An employee costs a company more in taxes and employee benefits than a contractor. Companies decided to get clever and not hire employees, just hire contractors. It was a form of tax evasion and a way to cut benefits costs.

For a long time companies were able to use "permalancers" - permanent freelance employees. The thing is, if they're permanent they need to be classified as employees. If you only hire someone for a week or a month, that's not an employee. Can you specify that you're only hiring them for a year or only for five years?

The's laws are all about determine the line where one crosses from temporary contractor to permanent employee and force the companies to be able to pay what they should be paying.

Some states decided they wanted to avoid the legislative equivalent of an endless forum thread. So instead of trying to list every little nitpicky idea they could think of and how that they didn't miss loop hole, they decided to use the work for hire agreement to get companies to choose to make them employees.

They essentially are saying "We're not going to argue with you about who is and who isn't an employee. If you want to use a work for hire agreement which means there's a chance the tax and benefit status could be abused, then you have to do all the the same things you do for an employee. If you don't want to pay the taxes and benefits, fine, but you can use the work for hire agreement." They know no company would ever choose to do that, so they've made "employee" the equivalent of "tomato" and "contractor with a work for hire" the equivalent of "tomAHto".

If they use the work for hire agreement and don't pay the taxes, it doesn't invalidate the agreement, it means they owe taxes and benefits and when this is discovered in the audit, they owe penalties and interest too.

Yani S wrote:

Yes did it for taxes and went LLC for liability
It was the best one that fit my business model which I looked at them in depth. I would have rather not gone corp. As it has its draw backs but plus out weight those. Might change it to another state though. Caly. is nuts!

There are no tax benefits to being an LLC, only the liability benefits.

Yani S wrote:

Yes if I really wanted too. I can make as much money as they do from the photos. But I would not do that for one! Two I would not be trusted and would not get any jobs for any others as well.
Now there are companies that went under that I could use those images as they are not in use and mostly won't be. But then again I don't think I want to chance it.

Hypothetical is irrelevant. Have you or not?

If not, then whether something was a work made for hire or not has been irrelevant for you.

Mikey McMichaels wrote:
What's the difference between doing a job with a work for hire agreement and selling them the copyright? The answer is nothing, just the language on the paper.


Work for hire does not imply that you are an employee, it definitively says you're not. When you're an employee, the employer owns everything you create, so there's no need to a a work for hire agreement.

A work for hire is a way of saying "You're not an employee, but our terms for the job will be the same as if you were an employee."

Wrong on all counts.

Start with the first point - selling copyright is not the same as work made for hire. In a work made for hire, the copyright belongs to the employer - in a sale of copyright, it was mine and I sold it (for a substantial fee). It is covered by different statutes and areas of the law. In addition, copyright transfer is much less likely to be modified by changes in the law later (although moral rights such as shown in Britain may impact it), while "work made for hire" is far more likely to be changed as it is affected by labor laws and tax laws and both of those are changed fairly often in most jurisdictions.

Second point - under US Copyright law (and under the contract law of many other nations) as well as court rulings, work made for hire CERTAINLY DOES imply you are an employee - in some cases, IT IS REQUIRED in order for "work made for hire" contracts to be valid.

You might want to bother to research some case law, such as the Microsoft case that someone referred to earlier or Conde Nast being taken to court multiple times in the last two decades over their illegal and fraudulent attempts in New York (they seem to think the same as you do, fortunately, the courts haven't agreed).

Mikey McMichaels wrote:
Hypothetical is irrelevant. Have you or not?

If not, then whether something was a work made for hire or not has been irrelevant for you.

You made a lot of points I did read them but not going to answer them all. Its 6 and I have to go to work and shoot. They sound good but for some reason all sound off to me. It has enough truth to almost sound legit. But the others have more facts they stated that I can look up. Do you have any facts to back your up?

Al Lock Photography wrote:

Wrong on all counts.

Start with the first point - selling copyright is not the same as work made for hire. In a work made for hire, the copyright belongs to the employer - in a sale of copyright, it was mine and I sold it (for a substantial fee). It is covered by different statutes and areas of the law. In addition, copyright transfer is much less likely to be modified by changes in the law later (although moral rights such as shown in Britain may impact it), while "work made for hire" is far more likely to be changed as it is affected by labor laws and tax laws and both of those are changed fairly often in most jurisdictions.

Second point - under US Copyright law (and under the contract law of many other nations) as well as court rulings, work made for hire CERTAINLY DOES imply you are an employee - in some cases, IT IS REQUIRED in order for "work made for hire" contracts to be valid.

You might want to bother to research some case law, such as the Microsoft case that someone referred to earlier or Conde Nast being taken to court multiple times in the last two decades over their illegal and fraudulent attempts in New York (they seem to think the same as you do, fortunately, the courts haven't agreed).

Yes! This what I was thinking too.

Al Lock Photography wrote:

Wrong on all counts.

Start with the first point - selling copyright is not the same as work made for hire. In a work made for hire, the copyright belongs to the employer - in a sale of copyright, it was mine and I sold it (for a substantial fee). It is covered by different statutes and areas of the law. In addition, copyright transfer is much less likely to be modified by changes in the law later (although moral rights such as shown in Britain may impact it), while "work made for hire" is far more likely to be changed as it is affected by labor laws and tax laws and both of those are changed fairly often in most jurisdictions.

Second point - under US Copyright law (and under the contract law of many other nations) as well as court rulings, work made for hire CERTAINLY DOES imply you are an employee - in some cases, IT IS REQUIRED in order for "work made for hire" contracts to be valid.

You might want to bother to research some case law, such as the Microsoft case that someone referred to earlier or Conde Nast being taken to court multiple times in the last two decades over their illegal and fraudulent attempts in New York (they seem to think the same as you do, fortunately, the courts haven't agreed).

Your first paragraph doesn't explain the difference. In both cases, the literal author no longer holds the copyright. At that point there's nothing left to be the same or different. Laws changing doesn't undo that transfer.

Years ago I spent hours going over this stuff with a lawyer and he made a lot of things extremely simple and clear.

One of them is that there is no need ever for a work for hire agreement if the person is an employee and the IP is part of their job responsibilities.

In other words, a work for hire agreement is only used with someone who is not an employee. That is the entire premise behind why they exist.

The Microsoft case was described incorrectly by the person who bright it up. It is a case about tax evasion, not copyright.

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.

This +1000.

Is the work for hire contract worth more than the lifetime earning potential of the images, based on your past history?   Is the amount you're being offered fair in relation to how much money the images will make for the client?

If so, take the money.   If not, turn it down.   Pretty simple equation.

Artistic integrity is great, but cash is king.

Yani S wrote:

You made a lot of points I did read them but not going to answer them all. Its 6 and I have to go to work and shoot. They sound good but for some reason all sound off to me. It has enough truth to almost sound legit. But the others have more facts they stated that I can look up. Do you have any facts to back your up?

They sound off because they're not what you want to hear maybe?

Others don't have more facts they have unsubstantiated claims and references to cases that you assume you can look up. Why don't they have quotes or links like a footnote. I almost quoted the wiki on the Microsoft reclassification, but people here dismiss Wikipedia unless it supports their point.

The only "facts" I have are the written answers from an IP lawyer I co-authored an article on that analyzed whether a mix of a multitrack audio recording was a separate copyright. In order to answer that we had to define who could have a claim in connection with an audio recording (both the master and underlying composition) define derivative work, and what makes something a work for hire. So he made sure I was clear and he fact checked the article.

I like to break things down as simple as possible - B&W. You'll see posed above in someone else post some of the requirements for a written agreement. That was one of the specific elements of the scenario we were presenting. So I asked him "is it accurate to say that in the absence of a written agreement, no work done by a contractor is ever considered a work for hire". He confirmed that was accurate. I remember that one because it comes up so often and years ago, I'd go back to the emails and dig up the quote.

The rest of the facts were spelled out that way - specific questions with confirmations, some hyperbolically to ensure I was grasping the underlying concept.


The reason my perspective is sticking out is that everyone else is looking at labor laws and using them to determine who owns a copyright. Labor laws don't determine that copyright laws do. You need to look at it from a copyright law perspective, not a labor law.

The labor laws determine the remedies to specific types of violation.

If you and I sign an agreement we are each bound by it. If you breach it, I'm still bound by my part in the concept of the law, but not in the practical terms of the law.

Let's say we sign an agreement where I sell you an object and you take it and the agreement  says that you'll pay in 30 days. It doesn't specify anything about ownership reverting or me having the right to repossess it.

Then you don't pay, what can I do? The answer is that I sue you for a breech of contract. I can't sue you for the money you've made using the object (let's say it was a tool). Ownership doesn't revert, plus I don't want a used object back, I want my payment.


If you sign a work for hire agreement and they don't do what they promise, that doesn't change your obligations. So they still own the copyright,  it you can sue for the promises they haven't delivered.

If you were entitled to things that and employee gets by state labor laws, then you sue for those things you didn't receive. The IRS doesn't care about the IP, they care about the taxes they didn't receive. So an illegal work for hire contract isn't invalidated when the hiring party doesn't do what they're supposed to. What happens is that when they sign that work for hire agreement, they are accepting additional obligations that are not written in that contract. They are not allowed to do only the copyright transfer, they must do they whole set of requirements. Any legal actions are to make those things happen, not unsigned the written agreement.

John Jebbia wrote:
It's no wonder people aren't hiring photographers any more like they used to. You folks seem to always make shit more complicated than it needs to be.

so let me see if i got this right:

a new local hair salon hires you to shoot a model for them. they say they need a cool image to put on a flyer to let people know about their grand opening. shoot should take an hour of your time. you quote them $250 to be paid in cash at the time of the shoot. you do the shoot, they hand you the cash plus a “work for hire” contract, which you cheerfully sign.

1 year later they’ve opened up 4 more salons, your image is running on 3 billboards, local tv spots and it’s on all their product packaging.

oh, and a hair salon chain in france licensed the shot from them for $18,000 for one year advertising.

and you don’t care because you don't like to make things complicated?

howard r wrote:

so let me see if i got this right:

a new local hair salon hires you to shoot a model for them. they say they need a cool image to put on a flyer to let people know about their grand opening. shoot should take an hour of your time. you quote them $250 to be paid in cash at the time of the shoot. you do the shoot, they hand you the cash plus a “work for hire” contract, which you cheerfully sign.

1 year later they’ve opened up 4 more salons, your image is running on 3 billboards, local tv spots and it’s on all their product packaging.

oh, and a hair salon chain in france licensed the shot from them for $18,000 for one year advertising.

and you don’t care because you don't like to make things complicated?

I would bet that didn't happen even one single time in 2013 or this far into 2014.

I'm talking about a $250 image being relicensed by someone not in the photography business for $18k.


The other thing to realize is that size of licensing fee is gone. It's a mix of reduced budgets and more people willing to shoot for less and also people believing they can do it on their own.

There will be fees like that and higher for name photographers who are, in practical terms. licensing their name as much or more than the photos.

Mikey McMichaels wrote:
I would bet that didn't happen even one single time in 2013 or this far into 2014.

I'm talking about a $250 image being relicensed by someone not in the photography business for $18k.


The other thing to realize is that size of licensing fee is gone. It's a mix of reduced budgets and more people willing to shoot for less and also people believing they can do it on their own.

There will be fees like that and higher for name photographers who are, in practical terms. licensing their name as much or more than the photos.

the point of my example is that when you give up all rights for the price of limited usage, any scenario is possible. the client owns everything, including the rights to resell the image to a third party. is it likely? no. but is it professionally reasonable to spell out the rights that you are granting for the fee that you are being paid? absolutely.

ask yourself - why did the client present the “buy-out” contract to the op at the last minute? because their company’s legal department got tired of being billed by photographers for additional uses that were not in the original agreement. that should tell you two things right off the bat: #1) that they do end up using the images for other purposes, and #2) that they don’t want to have to pay you a dime for those additional uses!

look at it this way: we get paid for our time, but we should also get paid for the usage. i have no problem getting paid $500 for an actor headshot. that’s a shitload of money for an hour of my time. but i would have a huge problem shooting a national ad campaign for $500 an hour. it’s still the same hourly rate, but the usage takes it to a whole other level.

furthermore - when you explain to your clients that you will have to charge them more for all rights, and that if they don’t need all rights, you can offer them a better deal - they are usually happy to take the cheaper option.

also think about this: model agencies always limit the usage (for example “six months pos only, no advertising rights”). music publishers always limit the usage (“12 second clip to be used in 3 spots running domestically 60 days"). why? because they’re protecting their intellectual property.

and lastly, i have made thousands of dollars from clients who have come back to me for additional rights as well as stock sales (although admittedly, it’s not what it used to be). furthermore, i have very good paperwork and i register my copyrights, so that if they do try an end run around our original deal, i’m in a very good position to collect not only usage fees, but also damages and legal fees.

but hey, to each his own. if that’s all sounds too complicated or too uptight, by all means, do what works for you.

(nice work by the way  )

Mikey McMichaels wrote:
Your first paragraph doesn't explain the difference. In both cases, the literal author no longer holds the copyright. At that point there's nothing left to be the same or different. Laws changing doesn't undo that transfer.

Years ago I spent hours going over this stuff with a lawyer and he made a lot of things extremely simple and clear.

One of them is that there is no need ever for a work for hire agreement if the person is an employee and the IP is part of their job responsibilities.

In other words, a work for hire agreement is only used with someone who is not an employee. That is the entire premise behind why they exist.

The Microsoft case was described incorrectly by the person who bright it up. It is a case about tax evasion, not copyright.

The LSAT is incomprehensible to you, isn't it?

I did explain. The fact that you don't get it? Only means that the law is beyond you.

One more thing. The premise of why some contracts exist (in your opinion)? Doesn't make them legal. Model Agencies in NYC used to have girls sign "exclusive contracts" - until the courts ruled the contracts were not valid because both parties were not providing something of value (the contracts put requirements on the models, but the agencies had no requirements on them).

Oh, and clearly you didn't get the consequences of the Microsoft case (which are about copyright).

Mikey McMichaels wrote:
The other thing to realize is that size of licensing fee is gone.

Spoken by someone who has clearly never seen that size of licensing fee and doesn't get how top commercial photographers make their money.

You're wrong. Again. It may be gone for you. But not for all.