Agree to Agree, Part Four
So here we are, the fourth installment of my ongoing series about contracts for creator-owned comics (and creative works of all types, really.) In the previous chapters, we've discussed contracts in general, rights and term/termination provisions. Check those out if you missed them. Each bit is intended to work on its own, but I definitely think it works better as a series. Today's topic is "work for hire." This is a term that gets thrown around constantly within the comics business, and I think often with something of a negative connotation. Even a casual student of comics history has probably heard something about the way work for hire (which I'll abbreviate to WfH going forward for my own sanity) "stole" the rights to Superman from Joe Shuster and Jerry Siegel back in the 30s. In truth, that's not really accurate, but I think that's the general impression. Jack Kirby tangled with it, as did Stan Lee and a number of comics' earliest luminaries. In some ways, WfH is why charities like the Hero Initiative are so important (they provide assistance to aging creators lacking financial resources for medical or other needs.) WfH has a stigma attached to it, as if it's a doctrine that allows fatcats to steal from poor, ignorant creators.
Here's the truth: work for hire is a business term, not exactly a legal one. It can have substantial legal (and financial) consequences, but ultimately, it's a deal point that can be negotiated. This post will aim to explain why WfH can be useful to everyone working on a project. It's not good or bad, it's just a tool - the key is knowing what it means to you, and whether or not you should agree to it.
So, what is "work for hire?" To understand, first you need to grasp the way copyright law in the US and most foreign jurisdictions handles copyright in a given creative work. The first place copyright sits when anything is created is with the creator. I own the copyright in this blog post, just by virtue of the fact that I'm the person sitting here and typing it out. I can do absolutely anything I want with it, and no one can tell me any different. If I scrawled a picture on a napkin, I'd own that work, even if I never registered it with the US Copyright Office. Siegel and Shuster owned Superman outright, lock stock and barrel, until they sold the concept to DC.
Work for hire flips that basic concept on its head. It says that if you're a creator, and someone else pays you money for work you create, then copyright in that work is THEIRS, not yours. They can do whatever they like with it - change it, sell it, sequelize it, Underoo-ize it, all without your permission or any further money required to be paid to you.
You may be wondering why anyone would agree to such a thing. It's simple: money. Not every creator cares about the potential long-term rights of their creations. They would rather get paid up front, and that's a perfectly valid position. In many cases, particularly in creator-owned or small-press comics, it's the only way TO get paid, since smaller books don't always generate a lot of revenue. Taking a back-end deal could mean working for free, more or less. I often see situations where writers will hire artists to work on their books, and will require the artists to sign a WfH agreement in exchange for being paid up front. Again, it's perfectly fine, if the parties agree. The writer is taking all the risk by paying up front, and the artist can work with some degree of certainty that he'll be paid for his time.
The other time this appears is when a creator works on a company-owned character or line. If you get a job writing Spider-Man, everything you create in your story will be the property of Marvel, period. Characters, storyline, all of it. That said, newer company-owned contracts do sometimes include provisions allowing creators to participate in revenues generated by characters if they become a big deal. For example, Brian K. Vaughan's excellent series Runaways has long been rumored to be a contender for a big-screen treatment. While I don't know for sure, I wouldn't be surprised if he'll get to see something if it does. The characters are all owned by Marvel, and they can do whatever they like with them, but the company seems to have learned something from the PR disasters of the 60s and 70s with Kirby and many of his colleagues, and allows some participation by the creators in ancillary revenue.
Pay close attention to any WfH provisions in an agreement you sign. To be effective, a true "work for hire" provision must include the following:
a. It has to be in writing.
b. It should explicitly say that the work is "work for hire," as defined in the Copyright Act of 1976.
c. You must receive actual compensation for the WfH, of some sort.
Oftentimes, these provisions are accompanied by an assignment clause, whereby the creator agrees that if the work for hire section is deemed to be deficient in some way, then the creator assigns all of the creative work to the new owner. This language is like a backup plan to the WfH clause. If you see it in a contract, rest assured that whoever's buying your work is going to do their damnedest to hold on to it.
So, that's the way work for hire, err, works. As with most legal concepts, it's more complex than I've presented here, and there are always exceptions and counter-examples to be found. There's nothing wrong with signing a work for hire agreement, unless you don't understand what you're signing. Now that you've read this, though, that's impossible. Right?
Please feel free to ask any questions you may have in the comments. Next chapter will be about things to watch out for when someone gives you a contract - the scary stuff!