A considered response to a comment posted by The Art Director.
I received an excellent comment from our post Defending Work-For-Hire and found myself writing a rather lengthy response, so instead of extending the comments I decided to write a follow-up to the first article.
It’s about turf; it is critical to avoid freelancers working with competitors to the client. Period.
There are two sides to this issue: The first deals with the rights of the freelancer to do business while the second deals with the rights of the art buyer (agency).
NonCompete clauses represent another often-abused business practice with which we take issue. A freelancer is not an employee of the agency hiring them for work, therefore the agency does not have any right to restrict who the freelancer does business with. If an agency hires a freelancer to help with a project for Coca Cola, the freelancer has every right to turn around and accept work from Pepsi.
What is at issue here is not the agency's client, but the product of their collaboration. Many freelancers and many agencies specialize in niche markets such as finance and banking, travel and leisure, or the health care industry. Unless contractual language specifically forbids doing so, freelancers have as much right as an agency to work for or even resell work to similar (or different) clients. Repurposing and reselling the work of freelancers is one of single biggest benefits work-for-hire provides to the agencies who hire our services. It is also the one aspect of work-for-hire that really reveals how corrupt the practice is ... especially when viewed from the perspective of a jilted agency.
Agencies who purchase a specific product from a freelancer under a work-for-hire scenario are not under any obligation to pay the freelancer any additional fees for repurposing and reselling the art that was originally produced. Why is it acceptable for an agency to hide behind work-for-hire when it comes to repurposing and reselling the work of a freelancer?
Now, we certainly are NOT supporting the "trusted freelancer" described in the the Art Director's comment. Allow PAL to state for the record that we absolutely DO NOT support this kind of dishonest and destructive behavior and believe that the freelancer in question deserves his fate. Assuming, of course, that reselling the work was expressly prohibited in the freelancer's contract, his decision to sell a duplicate of a custom project to a competitor was just plain stupid. However, we will argue that this type of situation is not commonplace and is very easily avoided with a contractual clause ... and, the clause does not require blanket Work-For-Hire language to cover such a possibilty. Period.
If an agency feels it necessary to appropriate the rights of freelancers to "protect" their interests, then they need to consider ways of making the working arrangement more equitable to the freelancer. Such as, by paying customary industry fees for the intellectual property created, signing the freelancer to a guaranteed long-term retainer, or by providing full-time benefits to the freelancer in exchange for giving up all his rights of copyright to the work he creates for the agency.
Independent proposals, a separate statement of work, billing and contracting a freelancer means more parts to manage.
This is an easy argument, but one that doesn't stand up to minimal scrutiny. If an agency has "5 or 6 freelancers on speed dial" they have already vetted and approved the competencies of their "goto" creative professionals. Five or six master service agreements are not difficult to manage. In fact, it can be assumed that if a given agency has a freelancer on speed dial, the agency is NOT renegotiating every single project that gets outsourced to the same freelancer ... because they have already hammered out a working arrangement. Whether or not an agency has one hundred professional freelancers in their rolodex is immaterial, once the initial working agreement is approved by both parties very little "relationship" management is required.
It’s about Ego
If the shoe were on the other foot and it was the freelancer hiring the agency to provide a specific service, the agency would never sign a work-for-hire agreement. We suspect that their "ego" would be riding a little higher than their concern for "protecting" the relationship of the freelancer and his client. Ego would demand credit for their participation in the final product.
Because not all designers are created from the mold which shaped those socially conscious enough to read a comment this long regarding work-for-hire.
The problem is that work-for-hire is a blanket clause that punishes all freelancers, including those who have the integrity to run an honest business.
It PAL's opinion that no defense of the practice of work-for-hire will make it "fair" to the freelancer. Mutually dependent relationships require equitable arrangements in order to function smoothly and as much as they may not like the reality ... agencies can't live without us. So, why not treat us with the respect we rightfully deserve?
Defending Work-For-Hire: A Counter Counter Response