Work For Hire: Should You Do It?

Photo and story by: Annalise Kaylor

One of the best pieces of advice I was ever given when I started my photography business was to always have a contract. To this day, there has never been better money spent for my business than the money I’ve paid my attorneys to review documents or create them. Protecting your business and protecting your personal assets is incredibly important.

Once I began accepting assignments, contracts became a HUGE part of my every day life. Thankfully, I had a couple of long-time photojournalist mentors who helped me understand what to look for when publications and organizations sent out their contracts for the work. One of those big red flag areas is the “work for hire” section or clause that will appear in virtually any contract.

Work for hire (WFH) isn’t new, but as newsrooms laid off more staff and became dependent on independent photojournalists and writers, work-for-hire became a much bigger deal. And now, the “gig economy” is in full force, making independent work more appealing than ever to more people than ever. If one of your goals with your wildlife photography is to accept assignments for any form of media, a corporation, or non-profits, then work for hire is a concept you must understand.

WFH refers to a situation in which a photographer, who would normally keep all of their rights under copyright law, gives up those rights. The copyright, and all of the benefits and protections that go with it, belong to the employer, organization, person, or publication that commissioned the work.

Not everything made or used for someone else will qualify as work for hire, though. There are criteria that must meet the legal standards for your work to fall under work for hire, and we’ll get to that a little bit later.

So how does “work for hire” pertain to our photographs? I have a couple of examples.

Over the years I worked as a staff photographer and video producer for an international NGO, I created hundreds of thousands of photographs and videos for my employer. Yet, I do not own the copyright to even one of those photographs — because I was a salaried employee making those photos was one of the duties of my employment.

They give me a license in perpetuity to use that work in my portfolio, on social media channels, and for my personal promotional use, but I otherwise cannot use those photographs in any other way. I’d be stealing them, despite the fact that I made those photos myself. I made those images on their time, for which I was paid. And I also made those images on their equipment, not my personally owned gear.

On assignments as a photojournalist, I’ve often done my job under “work for hire” situations. I go into the field, complete the assignment, turn my images over to the photo editor who hired me and that’s that. The publication or the non-profit organization that commissioned me owns those images and can do whatever they want with those photographs without any further compensation or consideration to me.

Even though I was an independent contractor, I was required to accept the “work for hire” language in the contract if I wanted to take the assignment. And in some cases, that agreement meant I couldn’t even use the photos in my portfolio.

“Work for hire” is not just an industry term, though. It is a statutorily-defined term in U.S. copyright law. In order for work produced by an independent contractor to be WFH, it has to, according to U.S. copyright law:

Be Commissioned or Specially Ordered

This means that the independent contractor or freelancer is being paid to create something new, as opposed to being paid for a work that already existed. For example, photography that you already made is not something that is commissioned or ordered. You already made it under circumstances that aren’t related to this project, so therefore it wouldn’t count as WFH in this instance.

Be Part of a Signed Document

An agreement between you and the entity commissioning the work must be in writing and both parties must expressly agree that the work is made for hire. It must be signed by both parties. For example, when I’ve done assignments for various publications, I’ve always been asked to sign a document advising that I’m aware that this is a work for hire and that I agree to that provision.

The Work Must Fall in at Least One of These Categories

(1) a translation, (2) a contribution to a motion picture or other audiovisual work, (3) a contribution to a collective work (such as a magazine), (4) as an atlas, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, (9) or a supplementary work (i.e., “a secondary adjunct to a work by another author” such as a foreword, afterword, chart, illustration, editorial note, bibliography, appendix, and index).

Just because a publication or editor throws a WFH agreement your way doesn’t mean it has to be signed as is, nor does it mean it’s a bad thing. There are too many circumstances and variables that make a “one size fits all” response impossible. Each job and each assignment is specific.

For example, it was about a year ago that I turned down a job with a celebrity non-profit that rhymes with “welton swan” foundation because it was work for hire and didn’t pay me enough to be comfortable not being able to even use the photos in my portfolio, let alone give up the copyright. On the other hand, I accepted an assignment with the Financial Times out of London because while the job was WFH, their photographer agreement is such that if they resell my images through their content network, I get half that profit.

Each state has its own laws regarding who is considered an employee and who would be deemed an independent contractor, too. Generally, that determination tends to come down to how much control one person has over the other. Courts tend to look at the relationship of the situation more than they do the terms of “employee” and “independent contractor. The more control the person hiring has over the person doing the work comes into play. As does whose equipment was being used when the job was executed.

Because each state is different, it’s important to find an attorney in your area who can help ensure that you understand the “work for hire” language that’s commonly used in your state. Many states are (finally) starting to adopt freelancer-friendly laws that crack down on businesses that try and take advantage of loopholes to copyright law and wages.

Whether or not you decide to accept an assignment or job that falls in the “work for hire” category is up to you. There are pros and cons to both options and some publications or companies require that you enter into a WFH agreement. But, you should at least know what it means and what you give up in accepting the agreement. And, if you do decide to accept something that falls under WFH, at least attempt to ensure that you’re allowed to use the work for your portfolio and social media (pro tip: tag the client when you post) so that you’re not losing your bragging rights on top of everything else.