Work for Hire vs. Royalties:  No Longer Mutually Exclusive?

A topic of heated debate among writers, work for hire (also known as work made for hire or WMFH) is considered by some to be tantamount to selling your soul to the devil. Like politics and religion, those expressing a strong opinion on that vs. royalties and/or other types of rights may risk being (verbally) pilloried by fellow scribes of the opposite persuasion. But as the ASJA Confidential column on journalism vs. content writing pointed out, today the lines tend to blur a bit more. For this, the second in a of a series of articles about challenges and decisions that writers face in their everyday lives, author,ASJA member and lawyer Sallie Randolph who offers a range of legal intellectual property services to creative clients,sat down with ASJA Confidential to discuss some basics.

ASJA Confidential: Why should writers avoid making flash decisions about accepting or rejecting a work-for-hire contract?

Sallie Randolph: It’s more complicated than people might think. In some cases, WMFH can result in a major increase in what a freelancer is paid for a project. Even when you give up copyright ownership, you may be able to retain some rights under a contract.  Many book contracts have the publisher owning the copyright as WMFH but may also pay royalties to the author. You can use work for hire as a bargaining chip for things like approval rights, including use of your name and image in the promotional material. It all boils down to the contract itself, the individual’s situation and what makes sense for them. Lots of little things can go into a big decision. Which is why, if you have a question, it’s best to think in shades of gray rather than black and white.

ASJA Confidential: What are some of the misconceptions about work-for-hire vs. contract?

SR: Work for hire and royalties are not necessarily mutually exclusive. For example, when you sign a work-for-hire agreement, you are probably signing over the copyright, but that doesn’t mean that you can’t ask the publisher, as copyright owner, to license certain rights back to you. You can ask for residuals and royalties as well as reprint and/or film rights. Copyright owners can license rights back and forth through the mechanism of a contract and that can go both ways.

There may actually be some advantages to a work-for-hire deal. More money and negotiating leverage are two factors to consider when you first see WMFH in a contract. You can always say something like, “I normally prefer to retain the copyright but can give it up if you agree to license back the television and movie rights exclusively to me.”

ASJA Confidential: How has the copyright law changed?

SR: Although the copyright statute itself remains pretty much the same, the Copyright Office has changed many of its registration procedures. Previously, one fee of $55 would cover an entire work, even if there are several contributing authors. Now the Copyright Office requires a separate registration (and registration fee) for each copyrightable element in the work. For example, if you’re compiling an anthology, copyright registration could become quite costly, especially if it’s an academic publication. That’s actually a reasonable justification for a publisher to hold the copyright.

ASJA Confidential: What advice would you give to writers when making contractual decisions?

SR: Each contract is unique and depends upon your own personal circumstances. How much do you want the assignment? Is the subject going to be something than you plan on writing about for several publications? If it’s an evergreen topic, can you negotiate getting the rights back after, say, five years? It’s definitely not a situation of just looking at a couple of paragraphs out of context. You need to spend time to read and analyze the entire contract. As the creator of the material, you have bargaining power, but you need to come from a place of knowledge and logic, rather than focusing what you think should be rightfully yours. A good negotiating technique is to simply ask questions of the editor. Bottom line—it’s usually a give-and-take proposition with no black or white answer.

Announcement! ASJA Confidential will soon be published the first, third and fifth Tuesdays of each month, rather than weekly. It’ll be chock full of ASJA-centric news and information. Look to our new quarterly ASJA Magazine (for members only), beginning in October, for meatier topics, like this one, on the business and craft of independent writing.