From the United States Copyright Office website:
Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving rights from the author can rightfully claim copyright.
There is, however, an exception to this principle: “works made for hire.”
If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organiza- tion, or an individual.
https://www.copyright.gov/circs/circ09.pdf
As a photographer, it’s really important to be familiar with this concept and understand what it means to sign a contract that regards your work as ‘Work Made for Hire’. I’m not here to say you should not enter such a legal contract, after all, if you need to work you might not have much of a choice. What I’d like to emphasize is that fact that the value the client receives when hiring you under the above terms is very high and you should make sure you’re compensated accordingly (see the blogpost about 'Usage Rights’).
I’ve found that many organizations (even large ones) who hire photographers are not really aware of what is being traded when they enter legal contracts with photographers and want to use the ‘Work Made for Hire’ model. If they are not used to confront themselves with issues like these, they tend to regard the work of the photographer purely as ‘buying their time’, stripping away the value of the actual ‘creation’, which is, in fact, the true value. Anybody can sell their time to do a task, not everybody can create something that didn’t exist before, such as a photograph or any other type of art.
It is absurd to think that a photographer should be paid according to the time it takes to photograph and that, if that time is longer, the value delivered to the client is higher. The photographer serves their client by delivering solutions to their needs. The time it takes to actually produce that solution is totally irrelevant when it comes to its value. In fact, a photographer who is very fast at delivering the solution the client needs is actually making the client’s life a lot easier and is saving them time and headaches. Should that photographer really be paid less because the time it took was shorter? If anything, that photographer should be paid MORE.
Giving away your creation by selling the copyright to your images (‘Work Made for Hire’) is a way too common model that photographers should refrain from using when possible, unless compensated accordingly. Keep in mind that once you have sold the copyright to an image, that image can be used in whichever way the copyright holder wishes, including licensing the image further to a third party for as much money as they can possibly get.
Picture this. A small client approaches you because they’ve seen your work and they think you’re really good and they ask you to sign a ‘Work Made for Hire’ contract (maybe this is what they’ve always done because nobody has ever said anything and they are not really aware of the huge value they are receiving when a photographer agrees to that type fo contract). They offer you $500+travel expenses for two hours of your time and 2-3 images in total. Seems like a decent deal, especially if you’re just starting out, right? $500 for a couple of hours doing what you love to do? You’d be crazy to turn it down, right?
Well, not so fast.
Now, imagine that the small company you worked for is bought by a larger company (they automatically acquire the copyright to ‘your’ images). Say that they decide to run an ad in the NYC subway with one of your images. What’s the value of that image now for the client? I doubt it’s anywhere close to $500, since it’s being used to advertise their products or services to millions of people everyday and they are paying thousands and thousands of dollars to the NYC subway in order to do that. Is there anything you can do? Well you can certainly brag about one of your images being used in the NYC subway, but that’s pretty much it. You actually SOLD the copyright to your image when you signed that contract.
What’s your experience with contract-related issues? Please share your experience with the community by commenting down below. If you enjoyed this information, please share it on your own channels.
Thank you and Happy Shooting!