Work for hire - please explain.

<p>Work for hire is nothing new in Asian countries.But it is seriously opposed in U.S and Europe for the copyright of images purpose.Now Asians are also concerned about image copyrights.To understand more about image copyright I post this question.<br>

When a client hires me for a specific assignments (Say, Kraft foods for their cheese products print ad.photo shoot) and even I hold the copyright of my images, where will I may use the same images next (surely not for any other cheese producers). Only I can use the same image/s for magazines/editorials. Is there any other commercial uses for the same image/s ?</p>

 

<p>What country's laws are you seekimg information on?</p>

<p>"work for hire" is basically indentured servitude, as far as I'm concerned... but it isn't a bad thing unless you know the answers to the questions you ask about potential re-use of the images. Owning copyright is of limited value if you have no future market for the images.</p>

<p>A country will have a basic set of copyright laws which define how copyright is assigned when a copyrightable work is created. Many but not all countries assign copyright to the person who actually creates the work. Some countries assign copyright to the person who pays for the work to be done. In the US, "work for hire" is a contract or legal arrangement where the person hiring the work to be created owns the copyright. Examples might be an employee for a studio takes the pictures but the studio owns the copyright under the employment contract. An engineer designing a new part for a car? The car company owns the rights to the design and the part, etc. "Kraft" might very well include ownership in any contract they use for a shoot. That would bind any uses the photographer might have. </p>

<p>You need to explore the laws of the country where the work is originated and depending on those laws, ensure that the contracts for the work define the ownership issues. The contracts, if legal, will over-ride the default legal copyright provisions. If there is no contract, then the country's default laws apply. </p>

<p>Regardless of the country in question or even of the laws in question, the real issue is relationship between you and the person who has paid for your services. Why risk that relationship (and future business) by being willing to sell, again, what they paid you to produce - even if your contract with them has legal room for that?</p>

<p>Matt, I don't understand your point. Most of my clients understand that they buy an image for a certain length of time (mostly understood as exclusive) or they buy unlimited use as to time and use and exclusive use of an image. They understand that price is different for each set of rights. I have recycled many images once the term of use by the client has expired and they have called me, with some pride, to see that their image was used somewhere else--a sort of validation of their idea I guess.</p>

<p>The problem with "work for hire" is that the person who actually takes the image surrenders all rights to the image, even the right to show it in their book technically. In the US, for a "work for hire" arrangement to be valid, except in the case of employment as an employee, is that the agreement with those words has to be physically signed by the photographer before it is valid. In Canada, it is just the opposite, it is a work for hire unless you have an agreement to the contrary.</p>

<p>I have used quotations marks around the words "work for hire" because it is this usage of the words that creates the issue. Saying that they "hire you to do the work" is not the same legal term as the former and thus is not the same issue.</p>

<p>My point, John, is that your understanding with your client dictates all of this. If you do the work "for hire" (in the legal sense of that phrase) then of course it's actually their work in legal terms. If you do the work outside of that mode, then their rights to it are negotiated, and are expressed in licensing language to which both parties agree. <br /><br />That's why I'm asking Rashed to consider what sort of relationship he wants with the client. If it's clear, going into the contract, that the large company in question will only have limited use of the image, then that's that. But if they hired him to produce images just for them - even if it's not "for hire" in the real sense of that term - then it's likely that they're going to insist on a fair amount of exclusivity in the use of the images. If they don't want to pay for that kind of exclusivity, then Rashed needs to construct a contract that is very clear and which pre-emptively fends off any problems. It's about preserving good will, too.</p>

<p>I disagree "it is seriously opposed in U.S for the copyright of images purpose" ...it is opposed on the internet. Photographers shoot for hire all the time in the U.S.- photographers who shoot for four, five and six figures a day. I've shot work that I never saw again and I have never been haunted by it- they're commercial photos that a client used to sell something, not Faberge Easter eggs.<br>

Rashed, if someone wants to hire you to shoot a job and walk with the images for an amount you like, do it, take the money and move on. People on the internet have an obsession with copyrights, potential future usage, and spewing unending rhetoric. It's just one more commercial job- no more, no less. If it turns out all that great all the major players who care will find out who shot it whether you put it in your portfolio or not. </p>

<p>Thanks Guys.I know it's all in your contract.But I have hardly seen my images (advertising photography) were used 2nd or 3rd year.Clients comes with fresh ideas and new products to shoot each time.Re use of images mostly happens to stock photography. There is a saying ' When it's clicked,its copyrighted'. I kept a claws in my contact saying ' Copyright belongs to the photographer. He has the rights to use the images for promotional purpose like exhibition,website,print ad. e.t.c .<br>

If some one wants to use my images (taken for client earlier) mainly magazines or news papers,I call the client and ask for his permission.Most of the Clients just want an acknowledgment/courtesy of his company/business to be mentioned in that news article.Clients don't bother about the monitory issue as they know editorial payments are not a handsome amount here in South East Asia. </p>

 

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<p>The problem with "work for hire" is that the person who actually takes the image surrenders all rights to the image, even the right to show it in their book technically.</p>

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<p>Why is that a problem? You are just being paid for the hours you work. If I hire a plumber to fit a toilet in my bathroom I don't get a licence to use it and expect him to come round and use it once the licence has expired. Why should it be any different shooting images for which you wouldn't have any personal use for?</p>

<p>Basically, if the money you got for the job pretty much equates to what you would charge for exclusive perpetual rights, then just like Dennis said, take the money and forget any future use of the images (apart from your portfolio). If on the other hand you are going to be paid a pittance for the work, then you could attempt to negotiate a usage pricing. In that case much will depend on the nature of the shoot and the object(s)/people depicted. For example, images of a company's branded, for example, trucks, are pretty much useless anywhere else.</p>

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<p>If I hire a plumber to fit a toilet in my bathroom I don't get a licence to use it and expect him to come round and use it once the licence has expired. Why should it be any different shooting images for which you wouldn't have any personal use for?</p>

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<p>Because retaining an ownership interest in imagery (including imagery that is not for personal use) often provides value to the owner such as earning repeat use income from a user, the potential for multiple parties paying to use the imagery, the ability to sell or transfer ownership outright to others, control over how imagery is used or seen by others, to realize gain in the value of an image over time in some instances, additional bargaining power for compensation and the list goes on. A plumber installing a toilet in someone's home is not able to derive income or other value in these ways. A photographer can choose engage in a work as an owner or as a work for hire, whichever is more suitable. The plumber is unable to make such a choice.</p>

<p>There's no intellectual property benefit that can be derived from installing a toilet so it just isn't an analogy at all.</p>

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<p>Because retaining an ownership interest in imagery (including imagery that is not for personal use) often provides value to the owner such as earning repeat use income from a user</p>

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<p>I apopreciate that but if I was hiring a photographer to do some product photography for an item I was manufacturing and selling, I would want full rights transferred to me. If the photographer doesn't agree to this I would find one whoe does.</p>

<p>Copyright is a valuable commodity and ownership is to be defended when the images concerned are personal artwork, etc. for print sales, editorial use, stock, etc. but images of someone elses product for advertising, catalogues, etc. are not in the same category. That should be done on a paid by the hour basis with the customer retaining all rights.</p>

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<p>That should be done on a paid by the hour basis</p>

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<p>This excludes exclusive use licensing which can be suitable for client's concerns and also permits compensation schemes based on the frequency usage, type of usage, geographical distribution and other formulas. Work for hire isn't necessarily based on hourly pay anyway. Compensation can be a made as a flat fee, by volume and other schemes. While work for hire may be used more widely, maybe even standard in product, services, catalog and other advertising use and so forth and you might require hourly pay, it doesn't mean everybody needs or should do it your way. I know of a shoot done recently featuring product and company vehicles with the business name and logos for advertising use to be featured in different media. The photographer wasn't being paid hourly and retained ownership of the imagery. According to the claim above, this was improper. That's nonsense.</p>

<p>I didn't necessarily mean being actually paid by the hour, rather I meant being paid for the work done much as you would any other tradesman.</p>

<p>First we are told that photography that is not for personal use "should be" work for hire because its like installing a toilet in someone's home and then the criteria changed to products for advertising because that is what you would require as a customer. Both with reference to being paid hourly. Now the compensation portion extends to that "any tradesman" would receive. The shoot involving the photographer and client I described above 'should have been' a work for hire under this latest criteria. That is still nonsense.</p>

<p>If its common or expected in the marketplace for a certain type of shooting to be made a work for hire or if the photography services fall under a scenario that legally causes it to be a work for hire, its helpful to discuss that. To announce that someone's photographic services out there "should be" a work for hire merely because you would want it as a client and/or because it involves just happens to involve some particular subject matter is a disservice to those who are unfamiliar and learning about the business. So far there has only been discussion of the latter situations and none of the former. Toilets and all.</p>

<p>To my way of thinking Copyright only applies to contracts where every aspect is clearly spelled out or to vague or no contracts where the law usually but not always protects the photographer.<br>

I say that because I did some product photography for an International company and the provisions of the contract were , in a nutshell, totally binding. I could not use the images at all and the company could use the images in whatever way they saw fit , with no accreditation to me whatsoever on the images.<br>

Reality is that if you dont want to sign, they will go find someone who will. I think there will be more of that as it seems to becoming a trend, especially with multi national companies.</p>

<p>"Why is that a problem?"</p><p>I had a slightly different question and my research was inconclusive (probably because I'm not a lawyer): Is it even really a fact that one can't show in their own book (assuming that means 'portfolio for PERSONAL promotion') an image created under work-for-hire or employment situations? I saw a comment in the copyright law about public exhibition, but not personal exhibition or portfolios.</p>

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<p>Reality is that if you dont want to sign, they will go find someone who will. I think there will be more of that as it seems to becoming a trend</p>

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<p>Then that would be market forces at work much like ceding copyright ownership or largely unrestricted usage seems to be a trend in wedding photography. That doesn't necessarily mean one "should" pursue that approach. They may have to, they may not but, photographers are free to make whatever arrangements a client is willing to agree to.</p>

<p>The customer is always right. Do what the customer wants and you should be able to make it as a business. Oppose your customers' suggestions and they will very likely find someone else to work with.</p>

<p>I have no personal interest how this goes commercially as I am neither a professional photographer or a customer of photographic services. However, I can see the business model of work for hire with the customer retaining full rights becoming the norm for product, architectural, wedding and portrait photography where you are being comissioned to produce images for someone. You may not like it but I think that's where it's going.</p>

<p>To me, the issue here boils down to understanding that the specific words "work for hire" has legal consequences. It doesn't matter if you do it or you don't do it, those words that might seem harmless to a newbie and can be hidden in a contract, take all of your rights--whether that is what you thought you were agreeing to or not! The rest is just choice.</p>

<p>As to big corporation contracts, every PO I have ever signed has about 1/2 of the terms and conditions lined out and INITIALED before I sign them. Almost every advertising agency's standard PO has wording, including "work for hire" clauses, that are explicit that the work you do for them is theirs or the clients. Not one has ever balked at my lining out all of these clauses. You are a subject to the royal family and have equal rights to specify the terms of your transaction.</p>

<p>That said, I sold unlimited and exclusive rights in certain situations, but I have always retained the copyright and the rights to use the images for personal promotion and such--non commercial uses. If you are just shooting a companies product, then you decide the trade-off for the work being done. Most products don't last longer than a year or two, so you weigh that in your willingness to accept certain terms or pay. If you are shooting an image (creative) type of shot, you weigh that as well. Most of the time, exclusive and unlimited will garner a much larger fee--well into the 5 figures--than use limited to a few years. It is all negotiation and willingness to accept the terms and conditions of a shoot.</p>

<p>Ones competitor might too just want to shoot the images; and assign all rights to say Kraft; and price the job so he is happy.</p>

<p>The competitor might not care about owning some shots of Crackers, Cheese, Cereal, Candy etc.</p>

<p>If Kraft looks at your stuff/images versus your competitor; they might just "go" with the professional that is easy to deal with; ie no strings attached; ie legal monkey business or risks.</p>

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<p>photographers are free to make whatever arrangements a client is willing to agree to.</p>

 

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<p>Yes John I agree with what you have said - the photographer can make all the arrangements they like, and if the client is not willing to agree, they will go elsewhere, - I thought that's what I said anyway.</p>

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<p>Think of this from the customers point of view. Sometimes the customer wants images shot for them and only for them. They want the right to use it whenever they want in what territory they want for whatever purpose they want, and they don't want to mess around getting a copright holder's approval and negotiating fees retrospectively. Now as a photographer, whats wrong with that? You just have to be sure to factor in that there's no downstream revenue, thats all. Copyright isn't birthright- you're not selling your soul here, you're just giving the client what he thinks he wants for fair reward . There's no magic process by which the photographer is entitled to expect an income for ever for each shot they manage to sell. <br>

Frankly much of the photography thats subject to work for hire agrreements is pretty specific to the commissioning company in any case- since otherwise they'd have got it from a library on a licence basis more cheaply than paying someone to go photograph for them. So its not like you're giving up a vast downstream revenue in most cases. And then of course there's the fact that photographers are pretty much ten a penny so if you get all precious about losing your rights, there's plenty of other photographers who'll do it if the price is fair, including this one.</p>

<p>I used to work as a senior marketing guy in a couple of large multinationals. Neither would accept any commissioned photography (or creative generally) quote from an agency unless the copyright was assigned to them. In fact every couple of years we had to get all our agencies to sign an agreement by which they ensured that all creative work supplied to us via themselves, whether done by their employees or by subcontractors, had to have copyright assigned to our company. If the Agency didn't sign it, they simply wouldn't get used again. If a subcontractor wouldn't sign across his copyright, he wouldn't get the work.</p>

<p>I agree what David said. I your images have no commercial use later,why die for Copyright.Unless it has commercial value (revenue generated ) or historical value in future.</p>