Work for Hire and Freelance Web Designers
If you search across the web, you will find numerous examples of contract templates for web designers. The verbiage varies, but the core message is the same: unless you specifically transfer the copyright in the contract, you own the work that you create. This is not a concept the design industry made up—the foundation of “who owns what” is derived from current copyright law.
When I do any kind of work for a client, I retain the copyright and this is explicitly stated in my contract. For instance, this is a standard “Assignment of Copyright” blurb from my web design contract:
Copyright to the finished assembled work of web pages produced by Contractor is owned by Contractor. Upon final payment of this contract, the client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners. Contractor retains the right to display graphics and other web design elements as examples of work in his portfolio.
The client can do whatever they want with the files—they can edit, rearrange, shift, break and delete them for all I care. But they can not resell them, nor can they license them to someone else. That capability belongs to me.
Most clients are perfectly fine with this agreement. A few raise questions, but as soon as I explain that the agreement is standard copyright law and they’d sign the same thing if they hired a sculptor or a musician, they understand. A few clients, however, will ask me to sign a “work for hire” agreement.
The danger of work for hire (short for “work made for hire”) agreements is that they are ruthless in their doctrine. Essentially, whoever contracts the works owns everything—as if they had created it themselves. Under US law, every full-time employee is technically in a work for hire situation, whether they signed an agreement or not. Beyond that, Section 101 of the 1976 Copyright Act is very specific in its scope as to what qualifies as work for hire:
A work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
Essentially, this boils down to the following:
- A contribution to a collective work, such as a magazine or literary anthology
- A part of an audiovisual work
- A translation
- A supplementary work, such as an appendix, bibliography, or chart
- A compilation
- An instructional text
- A test
- Answer material for a test
- An atlas
Websites, logos and most design projects clearly fall outside this list, so if a potential customer asks you to sign a work for hire agreement, refer them to copyright.gov.
Some clients, however, are hell-bent on retaining all copyright to a finished product. That is why they wanted a work for hire agreement in the first place. Since you own the creative work, you can call the shots on how the copyright is assigned after the work is finished. This is called an “Assignment of Copyright” and should be in every contract you send out—see my example in the beginning.
Should you decide to do business with these guys, feel free to negotiate specific terms but do not sign a work for hire agreement just to get the job. (By the way, these are easy to spot—they clearly label themselves as “work for hire.”) Instead, compromise in the Assignment of Copyright. For instance, the following text was adapted from Marstar Design’s sample contract on about.com:
Until full payment has been made, Contractor retains ownership of all original Work Product or parts contained therein, whether preliminary or final. Upon full payment, the client shall obtain ownership of the final Work Product to use and distribute as they see fit. Contractor retains the right to use the completed Work Product and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes, marketing materials, and portfolio. Where applicable the client will be given any necessary credit for usage of the project elements.
This assigns the copyright to the client (what they want) but leaves the contractor free to use the artwork as promotional or teaching purposes (probably what you want). But don’t go this route unless you’re really having a tough time with the sale—giving the client full copyright is a last measure of negotiation. Offering every Joe “Two Page” Website that walks in the door full copyright is just bad business and bucking a set of laws that was designed for your benefit and protection.
In my opinion, the only exception is the design of logos. Since companies want to use their logo for everything, everywhere, assigning them the copyright so they can file for a trademark is only natural. Trying to retain the copyright for a corporate mark will make you look like a jerk—and very unappealing for future work.
This entry is not comprehensive by any means, nor is meant to offer any kind of official or specific legal advice, but the work for hire situation keeps coming up with my clients and associates and I wanted to address it publicly. My one piece of advice to any freelancer is to understand the law. The situation will come up, and it’s better to enter negotiations with knowledge of the law than to blindly sign a contract. Work for hire has its place. It exists for a reason. But 99% of the time it’s not acceptable (or even legally enforceable) for freelance designers.
There are other resources on the web from people much smarter than me. I suggest reading the following: