Posted by Editor in • Editor • Business • Ethics
Posted on 06/17/08 at 07:10 PM • (0) Comments • Join the Forum Discussion

Designers seem to fall into two camps: those who have more experience dealing with Spec(ulative) Work and those who have more experience dealing with Work-For-Hire.

In twelve years, our intrepid editor has only come across two legitimate Spec jobs. But in that same time, Work-For-Hire has been an omnipresent shadow. In fact, in the past two years alone, we have seen an incredible increase in the number of local companies, ad agencies, interactive agencies, and small businesses who have added Work-For-Hire language to their freelance contracts.

The Difference
Spec Work is easy to recognize. You don't have to read the fine print in a contract with a magnifying glass to recognize the tell-tale signs of a Spec job. 

Spec is also really simple to define: Spec(ulative) Work involves companies who expect designers to invest their own time and resources to develop solutions IN ORDER TO GET THE JOB (if you get paid at all). Often times, companies will hold "contests" or send out shotgun "calls to all artists" in the hope that they will find a sucker to take on their work before getting paid anything at all. 

Spec Work also very likely affects more artists around the globe than does Work-For-Hire, as Work-For-Hire is something of an American phenomenon. The problem with sleazy though successful contractual tactics is that they generally catch on in other places.

Work-For-Hire is equally as easy to recognize as Spec Work, with one exception ... You actually have to read a contract (often VERY carefully) in order to find the language.  Even then, it can be difficult to spot. There are very few companies with the cohones to put the language in the document title.

Work-For-Hire is also difficult to define, sort of. In reality, it is a very narrow exception to the US Copyright Act ... with a very convenient legal loophole for unscrupulous companies. Work-For-Hire is defined as an agreement that "authorizes the complete transfer of copyright from the artist to the buyer". By complete, we mean complete:  Doodles, sketches, comps, layer files, everything belongs to the buyer.  You have zero rights whatsoever to the work you produce. None. Zilch.

According to the Copyright Act, in order for a work to be considered Work-For-Hire, three requirements must be met: (1) The work must fall under one of the nine categories defined by the Copyright Act, (2) The words "Work-For-Hire" must appear in the document, (3) You must sign the document.

So, what is the legal loophole? Your signature. It doesn't matter whether or not the materials you are producing for your client fall within the scope of the Work-For-Hire clause as defined by the US Copyright Act. As long as you pen your name to a piece of paper with the words "Work-For-Hire" somewhere on it, you have effectively ratified a Work-For-Hire agreement. And, if you haven't specifically negotiated with the client for "fair use" of the work you produce, you don't even have the right to display the work in your portfolio.

The Threat
Work-For-Hire is far more of a threat than Spec. The more it becomes a "standard" clause in contracts, the more we all lose control of our ability to establish new clients and to protect what is rightfully ours under the US Copyright Act. 

We do not believe that companies who engage in Spec Work are oblivious to the scam. Nor, for that matter, are the companies that mandate Work-For-Hire oblivious to the ethical lines they erase. The difference is that Spec Work can be easily brushed off by the client with a smile, a shrug, and a bit of feigned ignorance ("Oh, gee, we are sorry. We didn't know you don't typically work for free!"), while Work-For-Hire is staunchly defended as a "standard legal protection" and used as a means of black-mailing freelancers into agreeing to terms that are completely against their best interests. Terms that the buyer would never agree to were the shoe on the other foot. When the law allows companies to twist its use for unethical purposes, we have a real problem that has real consequences for all creatives.

The Impediment
Probably the biggest impediment to the understanding of Work-For-Hire is the creative himself. For whatever reason, it is really easy for freelancers to get up in arms over Spec Work and support the cause:  "We don't work for free!" But it is incredibly hard to drill into the same person's head that Work-For-Hire is far, far more detrimental to their entire livelihood because by the time you have to deal with it ... the contract has been offered to you. Then your choice comes down to integrity or income.

The ridiculous thing is ... Work-For-Hire is totally unnecessary, but this is a topic I will cover in another article.