Copyright for copy writers

"Work-for-hire" contracts in a digital age

As a freelance writer, I’ve signed some contracts that consist of a couple simple paragraphs, and others that had tangles of legal language in dozens of enumerated paragraphs. I’ve signed contracts that I understand better than the organization on the other end: Once, I tried to tell a bunch of editors that I had signed over to them my right to relicense a photo I had taken—that the 50 bucks being offered for it belonged to their publication, not to me—and a few days later, I was on the receiving end of an email chain that ended with the publication telling the would-be licensee that they had no idea who owned the picture in question.

Every freelancer has her own rules about what rights she’ll sign away to get paid. But in today’s journalism market, where a glossy publication might want the same story to appear in print, online, in the iPad addition, and in whatever innovative archive-mining form dreamed up in the future and where, once posted online, that same story might appear chopped up, aggregated, or reproduced wholesale across the great wide Web, it is common for publications to ask for all the things that copyright protects to be signed over. 

Often this request comes in the form of a “work-for-hire” or “work-made-for-hire” contract, a form of labor agreement in which, according to the US Copyright Office “an employer is considered the author even if an employee actually created the work.” The employer’s rights over the work extend so far that the employee’s name can be taken off the work.

This is standard enough in a relationship between a traditional employer and employee, in which the employer offers other benefits like, for starters, steady pay, an office, and healthcare. But as it becomes common as an agreement governing less formal employment situations, like daily blogging gigs and permalance arrangements, writers are getting a worse deal while publishers can make out like bandits. No matter what the situation, though, as Todd Pitock, a longtime freelancer, sees it: “They get the benefits of being an employer without having the pay any of the cost of being an employer.”

Blame the Internet. Or at least, digital media. Anyone who’s been following this issue will trace the infiltration of work-for-hire contracts into freelance journalism to The New York Times v. Tasini. The Supreme Court decided, in 2001, that the Times could not republish the work of freelancers—represented here by the then-president of the National Writers Union, Jonathan Tasini—in an online database without asking permission and offering compensation. (Tasini more recently tried to sue The Huffington Post over its treatment of unpaid bloggers.) In response to the Supreme Court decision, publishers started more routinely asking writers to hand over all rights to their work “in any media now known or hereafter developed” or to sign work-for-hire contracts.

In a print-based world, it is not an easy choice for a writer to give up all rights to a story. Work-for-hire contracts mean that requests and, more importantly, fees for reprints go to the publisher.

“Work-made-for-hire is a very risky contract to sign, so people don’t do it lightly,” says Alexandra Cantor Owens, the executive director of the American Society of Journalists and Authors. “And for anything that might have any resale value, they don’t consider that unless it’s a high fee.”

But for online-only content, not all writers find work-for-hire, or even all-rights contracts, as objectionable. “We should probably let this one go on Web content specifically,” Kim Kavin, the chairwoman of ASJA’s contracts committee, wrote in an email. Her reasoning: Once content is online, few outlets would want to pay to reprint it, anyway.

It does happen that online content gets reprinted—sometimes even in print publications. These request might not be worth the thousands of dollars that reselling a print-only story might. But just as every freelancer has her own rules about what rights to give away, every freelancer has her own threshold for what might count as money worth collecting.

No matter how much these rights are actually worth, publishers and editors often shy at changing their terms. “When a writer suggests, ‘How about changing it this way?’—they panic,” says Mike Bradley, of the National Writers Union. “They don’t know what it means. You have to educate the publisher, and they don’t want to be educated.”

It is possible, though. Bradley sent me to talk to Todd Pitock, because he’d had success pushing back against work-for-hire contracts. Pitock’s advice: know why you’re asking for certain rights. “I think one of the reasons that writers are vulnerable is that they don’t exploit their work to the full extent that they might. They object to the idea of not owning it on principle,” says Pitock. People are more likely to listen, he says, if a writer can explain how the contract is hurting her income.

Asking also helps. Pitock left one work-for-hire contract sitting on his desk for a couple of weeks, struggling with the idea of signing it. Finally, he called his editor and asked if there was any possibility of changing it. The editor responded quickly: He didn’t know why Pitock had received this contract. He’d send over the other one—a more flexible one—right away.

It is also possible, though perhaps more nerve-wracking, to ask for more money in exchange for signing away more rights. “The issues really is: Are you going give me enough money to make up for the fact that I can’t make my own secondary sales?” says NWU’s Bradley.

For writers working online, who might not expect to make secondary sales, this sort of bargaining might not seem worth it. There are publishers working online, though, who don’t use work-for-hire contracts precisely for this reason. The Awl, for instance, uses licensing agreements, which give the site the exclusive rights to publish an article for a limited amount of time. The writer keeps the copyright and can republish it, for however much she can get, after the allotted period. “Part of our rationale is that the monetary value of purchasing the copyright should be higher than the value of a license to publish, and so a license to publish is more in keeping with our pay rates,” wrote Choire Sicha, 
the Awl’s cofounder, in an email.

They’ve dealt with the problem of republishing the work they’ve licensed in any form they might want to use, too: The writer grants the Awl “a permanent license to publish the work by digital means, on the web and on delivery systems for digital mobile products.” I bet that most of the time everyone signing the contract actually understands what it means, too. 

Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications. Tags: ,