• When you order a meal at a restaurant, you don't automatically have a right to the recipe. 
• When you purchase an photographic print, you don't become owner of the negative. 
• When you purchase a dress from Versace, you don't get the dress pattern as a "bonus".

Why should independent creatives and small design studios be held to a different standard?

You are NOT holding a client hostage by retaining your legal rights as creator of the source material. You are protecting the integrity of the designs you created and you are protecting your methods of working (your trade secrets). This is just good business. 

Clients will always want "everything" for nothing. Therefore, it is incumbent upon all professionals to educate clients about our business and to establish standards that don't make it harder for small creative firms and independents to operate.  Turning over source files as a "bonus" is bad business and it winds up making it more difficult for all independents.

If a client "expects" to be given something for free, you probably don't want to work with them again anyway. Once that rock starts rolling downhill, you will not be able to stop it. Does this mean that you should protect every source file you create? Not at all, but understanding how the materials are being used is one of the methods by which professional creatives estimate and ultimately invoice for work.  If you are not considering how and where a creative asset [that you create] is being used by the client, you are short-changing yourself, your business, and the industry. Not every project is a flat fee assignment. Not every logo ends it's life on stationary.

How then do you retain a client?
Simple. Always do fabulous work, provide top-notch service, and treat your clients with respect. Not only does this approach allow you to retain your creative and professional integrity, but this is also how you remain a "go-to" designer.

Enter iPhone
For a hard-working small business owner, iPhone represented the dream of travel without being completely cut off from my clients for days at a time.  It's small form factor also meant I would be carrying a device far less cumbersome than a laptop coupled with the amazing bonus of not having to locate coffee shops that offer free wifi the world over. 

Within 36 hours of purchasing my first generation iPhone one year ago, I paid for the cost of the device (not the AT&T contract) with a single email sent from the steps of El Morro on the Island of Puerto Rico.  Cool.  Really really cool.

That said, iPhone is nothing more than an electronic lamprey attached to your wallet.  Breath deeply.  I like my iPhone, but I'm not going to extoll its benefits without addressing the very simple fact that it's cost of ownership is appallingly high.  Nearly $2000 over the course of the mandatory two-year contract!  $600 more than it costs to provide high-speed internet and email access and a host of other services to my desktop computer and laptop for the same period of time.

Original iPhone
Device cost: $399 / $499
Cheapest voice plan: $39 for 450 min.
Cheapest voice plan: $20 (data plan)
200 SMS included - $0
Cost over 2 year contract: $1815.00

3G iPhone
Device cost: $199 / $299
Cheapest voice plan: $39 for 450 min.
Cheapest voice plan: $30 (data plan)
0 SMS included - $5 for 200
Cost over 2 year contract: $1975.00

This amounts to approximately $3 per day.

It bears worth repeating that this cost applies to the cheapest voice and data plans available.  It is also worth noting that this does not include roaming charges, crazy SMS usage, or international fees. 

iPhone and world travel
I recently took my iPhone with me to Chile for a 10 day adventure.  Prior to leaving, I added the 20 MB Data Global Plan to my account for $24.99 / month (An additional $300 per year if you forget to remove it from your account after you return).  This covered basic usage, but NOT SMS or pictures.  Both of which required additional high fees. 

I was covered.  Or, so I thought. 

I discovered that coverage in Chile outside of the major metropolitan areas is virtually non-existant.  I suspect this is the case anywhere you may travel outside of the U.S. and U.S. territories (ie Puerto Rico). My $24.99 investment was only valuable for the two days we were in Santiago.  The remaining eight days were spent roaming the Chilean backwaters.  And, let me tell you, international roaming rates are the equivalent of getting lashed with a cat of nine tails. 

Despite having measured the amount of time I spent on the device, the resulting bill had my wallet begging for mercy.

There is simply no reason why this devise should cost what it does to operate.  AT&T has itemized and priced every available feature of the iPhone in order to fleece the fleece out of consumers while their "network" seems to be taking an unbelievable amount of time to "upgrade" to handle the technological "advancements" of the iPhone.

Yes, the iPhone is a luxury item and the standard refrain is that "luxury" costs money.  [censored].  The iPhone is a technological device that relies heavily on existing satellite networks and existing telecom infrastructure.  AT&T even purchases bandwidth from Sprint in order to keep their costs low and avoid having to upgrade their own technology delivery systems.  The result is that AT&T makes an enormous profit, Apple makes and enormous profit, and both companies provide dubious service to their customers.  iApps?  C'mon.  Most of them are abjectly useless.

iPhone isn't a necessity for small business owners, or anyone, but that simple fact doesn't justify the exorbitant cost of ownership.  I've got another $1000 to look forward to paying AT&T for the privilege of using my iPhone ... Check back in a year for my final verdict.

It seems so simple, right? Just don't show anyone anything until you've gotten a signed contract. Unfortunately, in my experience, I've run into situations where this was not possible. It was either provide a few ideas up-front or walk away. I know you're supposed to "always be ready to walk away from the deal" but I've run into a few projects that have made my mouth water. I'm not new to this; I've owned my own design firm for 10 years, so I know I shouldn't be entertaining the idea of spec work. I am confident in my abilities, and any client is extremely lucky to secure my design services. I should follow all the advice I've gotten by not giving anything away for free. I know consultants get paid handsomely for their expertise, and many designers make a pretty good living.

On the flip-side, from the client's point of view: why would they commit to hiring someone before seeing initial concepts? Even if they respect someone's portfolio enough to request their services, why would they risk being stuck with and paying someone who can't deliver what they need? If a designer has no previous experience designing for the client's sector, why would the client commit? People are also used to free trials, whether it be the free HBO package Comcast offers for the first 6 months of service, or having an initial yoga class on the house to try out the studio. They expect it. And unfortunately, we as designers have no control over that precedent that has been set by the market. 

So is this all because design and consultation are undervalued? Is this because designers undermine their own success by doing spec work and offering services for free or at deep discounts? Am I contributing to this problem by toying with the idea of offering spec work? I know if you're not part of the solution you're part of the problem, but what IS the solution? I know we all have to stand up for ourselves. Nevertheless, clients still expect it and designers still do it.

Many professional designers and firms have come up against spec work too. Take the Atlanta Beltline identity system call for bids: dozens of well-renowned firms submitted hours of design and consultation for free in order to win the contract. Plenty of firms with no shortage of paying clients jumped on it. Why? Is this different from an individual offering spec work in the hopes that they get to add a well-known client to his or her portfolio?

So if you do submit spec work, how do you protect your ideas? If you present design ideas and consultation before getting a signed contract, what's to stop someone from taking your ideas and hiring someone else to implement them? Offering consultation without a written commitment from the client will not guarantee you the job, and will not stop them from tweaking your original ideas and having someone else develop them. How do you make sure you get the job without giving your work and advice away for free?

I recently had an experience where a non-profit approached me about redesigning their website. Although I don't fall victim to the "it will be good for your portfolio so you should do it for free, we're doing you a favor by LETTING you create these designs for us", I still would love the opportunity to take on this project. I don't currently have any clients like this in my portfolio, so it would benefit me to secure this contract. I also would be able to place my design credits on the website, which is great free exposure since their website gets a lot of traffic. 

The current designer manages the website on a volunteer basis. We're in the initial phase and this is the up-front proposal or bid for me to get the work. It's possible that if I don't offer a few initial designs they are unlikely to commit to hiring me for this project. Why buy the cow when you can get the milk for free? In these economically tough times, money is the primary focus for many people. Non-profits also have the excuse of being well, non-profits. I know it's not right, but I feel I must convince them it's worth it to pay for my designs if I want to secure this contract.

I was told that if the decision-makers were presented with an amazing alternative design to what they currently have, I would get the job, as well as being paid. Even though I would be offering some free consultation and design concepts initially, I figured it would be worth it. I came up with a few design schemes, and I created a detailed document in which I went through the current web site and outlined both designs and consultation for each page. However, I don't want to just hand over my recommendations and designs without a signed contract. I don't want them to steal my ideas to have their designer to develop them for free. I have nothing to ensure that I won't be taken advantage of.

I have tried to plan ways to protect myself and ensure that I get the job:  

* Bring only a couple of print-outs to the meeting and don't share any digital files.

* Make sure all decision-makers will be present at the meeting, so I won't need to leave anything behind to be passed along for further review.

* Don't present any ideas or designs without a signed non-disclosure agreement.

* Don't leave any designs without a signed contract. 

Even though it shouldn't be, this is a tough situation for me. The best way for me to look at it, at least at the moment is this: I dropped $1000 on some Earthlink stock back in 1999. That was a risk, but I took it anyway. My stock value has since gone down to $350, but it was a learning experience. From the outset I looked at it as a gamble, but one I was willing to take. I accepted the consequences and had a good laugh when I finally liquidated those useless shares. I didn't clear out my savings account to make the initial purchase, so it wasn't much of a loss to begin with. I'm trying to view this in a similar way. I'm willing to take the risk, and if I lose, so be it. I haven't invested enough time on the project for it to have put a significant dent in my workflow. Even if I lose the contract, I will get something out of it: my designs will certainly be a great addition to my portfolio. I'm going to keep my fingers crossed and make a promise to myself: if this doesn't pan out, I learned a very valuable lesson: no client is worth giving away free work to.

A good resource to follow this is the article "Why Spec Work is Bad" - http://thedenveregotist.com/editorial/2361/ten-reasons-spec-hurts-everyone

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?

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.

I answered a vague ad on craigslist, an ad looking for a creative and motivated web and graphic designer. Through this ad I encountered a potential client, an up-and-coming company comprised of a couple web developers looking for a creative person with web knowledge to join their team and help get them off the ground.

For the sake of protecting identities, this company will henceforth be known as "Company X."

I answered Company X's ad, and they explained that their first project was for me to redesign their current website, which looked like a joke. They indicated (and I verified) that they needed a total design solution complete with color palette, look-and-feel, design, navigation, layout etc. for their business. They explained that they were just a couple of back-end programmer types with no creative skills and thus needed me to be the front-end, design element of their company. The services they offered were programming solutions to small businesses, but they needed an attractive web presence. They even mentioned a possible buy-in where I would be invested in the company on down the road and would be a full partner should things go well.

I came up with a proposal for them with an estimate of hours for the work and an up-front deposit.

I then received an response from them that said, in a nutshell, that this entire website redesign they required of me was a one to two day job at best (which it wasn't by any means) and that my deposit was half of what they would charge a client for a complete design package (so now all of a sudden they do complete DESIGN packages?). Then, they asked what exactly they would be getting for all these hours of my work. I thought it was obvious - they would be getting a website design solution. They had already openly asked for and agreed to this.

Company X pulled the all-too-familiar card that they were expecting to see some complete design mock-ups from me before proceeding, which I am sure most of you designers are familiar with. I was disappointed and disgusted but honestly not surprised. Asking a designer to create complete design mock-ups, including layout, navigation schemes and color palette, before s/he is paid and before contracts are signed is not a new phenomenon in this industry.

I was ready to cut my losses and walk away. However, Company X made one fatal mistake: They used a world-renowned designer's name as a manipulative bit of leverage. For the sake of protecting this designer's identity, this designer will henceforth be known as "Jane Doe." They stated that many of the top designers like Jane Doe don't even ask for an up-front deposit, so therefore, by me asking for one I was not only asking too much, but was also not following the industry standard.

Being the diligent person that I am, I first contacted four of my colleagues in the industry and asked them what they thought about this whole business. They all agreed that my proposal was reasonable and that it was highly unprofessional and just plain stupid for Company X to use someone else's name and reputation for what was tantamount to a guilt trip.

I decided to look up Jane Doe and found her online. She is an internationally known, talented and highly sought-after web and graphic designer located in Europe. I was genuinely curious whether it was indeed the industry standard not to ask for an up-front fee for what would result in a significant number of hours of work. Since they directly mentioned Jane Doe by name, I figured I would get an answer straight from the horse's mouth. Just as I had suspected, after asking Jane Doe if she ever charges an up-front deposit, I found out that she ALWAYS charges at least 50% (with no exceptions) before beginning any significant work.

I had mentioned in my email to Jane Doe that I was asking because a potential client refused to pay any up-front cost and used her name as leverage, stating that she never charged one. This ended up infuriating her, and she asked me for the name of the person who was spreading these unfounded statements about her business practices. Of course, I was more than happy to oblige.

Imagine how incredibly gratifying it was for me when I was BCCed on an angry email from Jane Doe to Company X calling them out on their lie, berating them for using her good name in order to squeeze what was tantamount to hours of free work out of designers, and demanding that Company X make a public apology to both Jane and me on their website and blog.

Maybe next time Company X will think about what they put in writing before they do so. Maybe they won't underestimate the determination and intelligence of their potential designers. Maybe they should think about paying people before they ask them to do dozens of hours of work. What was satisfying to me was that Company X obviously had a lot of respect for Jane Doe and may have even considered hiring her in the future for design work or, at the very least, tried to open a dialogue with her as a colleague. Company X dashed those possibilities on the rocks by putting its foot in its mouth, and I was the vehicle.

This whole thing had honestly started out as me just trying to gain more knowledge about what is common practice in cases like this. What resulted was probably the most satisfying outcome to one of the many instances where I have been taken advantage of as a designer and made to feel guilty for asking to be paid for the work I do. I felt justice had finally been served.

This story is not to say that all free work requests from potential clients are veiled attempts at getting work out of you with no possibility of future compensation. There are a few situations when spec work is kosher if you're up for it. In a situation where you have actively pursued a potential client in order to participate in a specific project, the bidding (often known as an RFP or Request for Proposal) process often involves doing some unpaid work to prove your skills and ability to solve the problems presented in that project. When applying for a job, the employer will often require a similar test, requesting designs for a typical project to see if you can handle doing what they would need you to accomplish on a day-to-day basis. Also, I have often done pro bono work for causes I care about (I recently did a poster for a breast cancer benefit) and that's totally up to you and what you're comfortable with.

However, as many of you have probably experienced, there are many instances where this is not the case. It can be tricky, and you want to make sure you don't just go around giving out your talents to everyone for nothing. A lot of the time you have to just go with your gut - which is what I did in this situation - and it turned out to be correct. Some key words and behaviors to look out for include "contests" for designs, which is usually a telltale sign that a client is trying not only to get design solutions for their project, but also to collect as many free ideas out of as many designers as possible. Of course, I am not including AIGA or other legitimate organizations in this contest category. I submitted a poster for AIGA's 2004 Get Out the Vote Initiative and I was interviewed on NPR's "All Things Considered" because of it. I wasn't paid for this, but I got great exposure as a designer. Also, be careful when someone asks you to do a large amount of work and provide a complete design scheme before paying you or signing anything. Concept work in and of itself is almost always the meat and potatoes of an entire project. In that case you're just designing the whole solution for free, and people pay big bucks for that kind of work.

AIGA can help provide some guidelines for ethical design practices and what to watch out for. Some great resources to check out for further advice on this include:

Articles on professional practices

Information on design business and ethics

Standard Form of Agreement for Design Services

We desperately need more of this ... even if it does get purchased for it's marketing effectiveness. Visit WheretheHellIsMatt.com

I do print things out for later reference, but when I’m done with those items, they get shredded and recycled. Bank statements and receipts get scanned, stored, and then shredded/recycled. Junk mail, especially credit card offers or “convenience checks,” immediately goes through the shredder.

And how do we recycle the shreddings? Several different ways: mostly, they go into large plastic garbage bags (which we reuse later), and are taken to the recycle center down the road and emptied into the “Office Paper” bin. We also have recently learned that shredded paper (the non-glossy, white office paper is best) can be used as mulch in your yard or garden. Just be sure that you don’t add it to your vegetable garden - any lead, ink, etc. can leach into your veggies, and that does no one any good.

Lastly, since I work from my home currently, I have little to no vehicle/gas expenses. I rely on natural light as much as possible, and keep the A/C off (or, now that summer has us in its grasp, set a couple degrees higher than I normally would), relying on the ceiling fan and small desk fans to keep me cool.

Being “green” in the workplace really isn’t that difficult. It does require a change of mindset if you’re not used to it, but in the end, it’s worth the small amount of effort required.

[NOTE: This article was originally posted on the author's web site.]

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.