The US Copyright Office, European Union, and international treaties define how copyrights are assigned, transferred, and licensed in our society today. If your business requires the use of copyrighted material, production, or invention of new intellectual property, you need a Work for Hire Agreement.
Without clear consideration and promises from both parties for reasonable value exchanged, legally binding contracts can be dismissed in court. Reduce your risks and liabilities as much as possible by using a clear, concise agreement to assign and use intellectual property made in the course of your projects.
You’ll need to do all of the proper research and homework first, but this template will give you a head-start and a good framework. You should always consult a lawyer though before finalizing any contracts.
A Work for Hire Agreement is a legally binding contract between two parties, almost always a company and the individual. The individual can be a private contractor or an employee of a firm but is generally considered to be the author of the work. When speaking in legal terms about intellectual property, which is nontangible property, unlike homes, vehicles, or physical goods, we use the word “Work” often.
The Work is protected by law in many countries, and by international treaties, and by default, it usually belongs to the author, inventor, or photographer. In some cases, similar ideas or works are created, and so in order to differentiate your work from the work of another person, you must file a copyright claim with the relevant authority. In the US, that is the United States Copyright Office. When you create an invention, and want to safeguard it from unauthorized copies or to license it to manufacturers, you need to create a patent and file it with the patent office.
This Work for Hire Agreement is typically used for works, normally protected under copyright by an author or creator. The author or creator enters into the agreement as the Contractor, and with the agreement, waives, transfers, and assigns rights to the Client, who may be a company, corporation, holding company, or other legal entity.
There are many important factors to consider when creating a Work for Hire Agreement, most notably the copyright legislation that applies to the particular region and timeframe of the work. Depending on the type of work, certain rules may apply that allow or disallow different things to be done with the copyright, which may nullify any agreement, even if signed by both parties.
In the United States, Copyright is defined as six statutory pillars, and each pillar can be assigned or licensed by the copyright holder. These six pillars are Reproduction, Preparation of Derivative Works, Distribution, Public Performance, Public Display, and Digital Transmission of Recordings. If the works are considered fine art, a seventh pillar is applied: the moral rights to the work. Moral rights can generally never be assigned, but they can be waived in certain circumstances.
Many people recommend not to assign copyrights, but instead to license. Licensing agreements are more flexible, and generally offer more permanent protections, where assignment agreements are often thrown out in court on technicalities.
If you do choose to go with an assignment agreement, there are two main domains where assignment agreements are used. The two domains are independent contractors working for hire and employees within the scope of employment. For the purposes of this template, it will primarily be used for the former: independent contractors, not covered under any other agreements for that specific project.
For this reason, we have included a number of important provisions, which apply specifically in this scenario. For example, the entire agreement clause. This provision includes legal language which nullifies any previous or other agreements between the parties, superseding them. This is important, because conflicting language between agreements may cause either or both contracts to be voided if brought to a court judge.
Did you know that another reason for contracts to be ruled as unenforceable is simply because of their complexity? If contracts use too much legalese, confusing language, order, or unnecessary words, they can be thrown out. We include an “understanding” clause right in the beginning to make it clear that the signature at the end requires a full understanding of the contract to be binding. Additionally, acceptance periods set a buffer of wait time between the delivery and signing, allowing in writing for a reasonable amount of time to make a decision.
Although there is always some inherent risk in making contracts, these clauses above drastically reduce the likelihood that a judge might nullify the Agreement due to unreasonable demands, coercion or duress reasons.
In this Work for Hire Agreement, copyright transfer terms are defined. These terms are called “assignment” in copyright law. For each pillar of the copyright, the terms of how much transfer is made, for how long, if it is exclusive, and to whom- all need to be defined. Alternatively, the agreement can stipulate that all rights must be assigned. Although common, this type of agreement can be the worst for the original authors of the work, and companies may want to consider a middle ground that shares the copyright partially if a high-value work is involved.
In addition to the terms of the copyright, because a Work for Hire Agreement is typically the only agreement relating to the project for the parties, sections need to be included that define the scope of work to be performed. In this section, we have included common project sections: timeline for the project, work schedule, project milestones, and consideration (payment) schedule and conditions.
In these sections, you can define special conditions, such as a bonus for delivery earlier than a certain date, or other performance-based amounts. By the nature of intellectual property work, for example, photography, graphic design, or cinematography, these sections can be quite complex and are left open for manipulation by the designer.
In addition to these custom sections, we include one very important clause- governing law. In other contracts, you can typically select whichever governing law is most convenient. In the case of copyrights, however, you need to read and understand all laws of the actual location that the works are being generated. The physical location often matters, and generally should be the location used for the governing law. If the copyright is made in one location and then sold or licensed in another, complex agreements will be required, and multiple governing laws should be used, and each governing law should stipulate what section(s) it applies.
We have made it simple to refer to sections and provisions. In contracts such as this, it is critical to include lines, section numbers, and subsections, allowing you to refer to specific provisions with clarity.
In the case that your work is considered to be secret, and you want to release it on a particular schedule, you will want to use the confidentiality agreement here. It is specifically tailored towards copyrights, including portions for customization if you have different release dates for different types of work.
As is almost always necessary in agreements, we also include breach and dispute resolution provisions. Without these, court battles over disputes may become quite costly. For small businesses, although these terms can add complexity, your business can not afford even a small court battle, so it is important to consider these clauses within your agreement.
Always do customize as much as possible, using advice from your lawyer. We’re not lawyers, and we don’t recommend you to use any legal advice here. If you download out a contract from us or any other online source, you’ll be off to a good start, but you should understand that you do so at your own risk.