"There's a good reason why companies would use Work-For-Hire!"

I recently had a colleague who owns a local marketing firm put forth a mild defense of work-for-hire by stating, "there's a good reason why companies would use Work-For-Hire."

The most common defense of work-for-hire boils down to "they have a right to protect their interests". Not surprisingly, this is also the defense most often used by the agencies that require freelancers sign work-for-hire agreements in order to work with them.

What interests are creative agencies protecting by forcing freelancers to sign work-for-hire?

• Are they protecting their relationship with their client?
• Are they protecting the quality of the work?
• Are they protecting the image of their company?
• Are they protecting a trade secret?

I can't think of anything else they could possibly want to protect.  So, let's look at these point by point.

Are they protecting their relationship with their client?
Perhaps. But, considering the clients we are talking about would never sign a contractor to handle a multimillion dollar account, the odds of that client bypassing the agency to work directly with a freelancer is absurdly remote.

Are they protecting the quality of the work?
Perhaps. But, why do agencies outsource the work in the first place? The agency may need a more experienced hand to run with the project, they may not have the capabilities necessary to do the work in-house or they over-sold and don't have the available resources in-house to get the job done.

The decision to outsource may boil down to simple profit and loss. If an agency can hire an adequate freelancer to get the job done for half the hourly rate they are charging their client, the agency will stand to earn a lot of money for no effort.

Are they protecting the image of their company?
Absolutely. If a client spends hundreds of thousands of dollars (or millions) to hire the services of a marquee agency, they are expecting that agency to do the work in-house. They are expecting that agency to work their own particular magic for them. So, how do you think a client would feel if they discovered that their over-priced creative partner was outsourcing to less-expensive and less-experienced freelancers? Hence, the term, "silent partner".

Are they protecting a trade secret?
Does a particualr agency have a secret method to design that guarantees award-winning creative? Do they have a development process so unique it could be patented? Does their secret handshake bestow supernatural design prowess on those lucky enough to be hired for the job? Give us all a break.

Work-for-hire boils down to laziness.
In reality, work-for-hire is included in contracts because companies are lazy AND they have found a convenient legal loophole (within the work-for-hire clause as described by the US Copyright Act) to exploit for their own enormous gain. Why bother wasting time negotiating fair contracts with freelancers individually when they can add a simple work-for-hire clause to a contract that applies to all contracted creative work and call it a day?

Why on earth would they not require freelancers to sign work-for-hire contracts as long as there are professional creative vendors who are willing to sign them? Why wouldn't art buyers use a clause that transfers every single right you have to them with three words and a signature? How much easier could it be?

Here is how easy "easy" is. Three words, "work-for-hire", and your signature provides buyers of creative services with:

• ALL rights of copyright to ALL work produced, including ALL preliminary work.
• Renders the freelancer "silent" which provides these benefits
  1. The client will never find out their work was outsourced at a far lower rate than they paid for the agencies services.
  2. Prevents the freelancer from using the work to market his/her business.
  3. Buyer can enter the creative in contests and claim ownership.
• Buyer does not have to pay any of the costs associated with full-time employment.
• Buyer does not have to pay the freelancer additional customary fees for reuse or licensing of creative.
• Buyer can reuse and resell the same creative to their clients for alternate media at marked-up (agency) market rates.
• Buyer has zero obligation to the freelancer forever.  Did you buy the baloney about a "long-term" relationship?

Here is what work-for-hire guarantees the freelancer:

• You don't have the right to claim copyright ownership of your work
  1. You don't own your concepts.
  2. You don't own your preliminary creative.
  3. You don't own your final creative
• You don't receive any of the benefits of full-time employment.
• You don't have the right to display the work you create on your web site or in marketing materials.
• You don't have the right to enter your work in contests
• You can't renegotiate additional compensation for alternative media placements for the work you create
• You may have signed a document that limits your ability to court the same client for different types of creative work.
• You may have signed a non-compete agreement that limits your ability to work in the same "industry".
• You probably accepted a lower hourly rate to get the job on the false premise that the buyer is looking for a "long-term" partnership.
• You are not guaranteed ANY future work because work-for-hire is not a retainer contract and even if you are placed on retainer, ALL of the points above still apply.

Instead of treating freelancers as invaluable resources who regularly save the day for over-extended agencies, work-for-hire devalues the creative product and the professionals whose work prevents those same agencies from losing valuable clients.

Work-for-hire is not a "protective" measure. It is a scam.

Companies who utilize work-for-hire in their contracts are lazy ... And, we allow them to get away with it. It is that simple.