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Work for Hire Agreement (Writers) – Kit
This kit includes information and tools that will assist you in drafting a “work for hire” agreement for the production of a written work. In most cases, the creator of a work is the sole and exclusive owner of the copyright in that work. The copyright becomes the property of the creator immediately and automatically as soon as the work in question is set in a fixed form (i.e., a text is fixed when it is written down). However, in certain situations, the person or entity that hires the creator to create the work will be the owner of the copyright in that work. Such a work is called a “work for hire.” The Copyright Act of 1976 sets forth certain specific rules and guidelines establishing when a work may be considered to be a work for hire. Included in this kit is a sample form for drafting a Work for Hire Agreement for a Writer, hiring an independent contractor to create a written work as a work for hire. The kit should be used to draft your own agreement, but you are advised to have a competent copyright attorney review the agreement before you sign it.
Basic Introduction to Federal Copyrights and Works for Hire
Copyright law falls largely, and often entirely, within the purview of federal law. Consequently, the term “copyright” generally refers to the statutorily created federal copyright, governed by the federal copyright statute (Title 17 of the U.S. Code). Creation of a Copyright While one may register a copyright with the U.S. Copyright Office, federal copyrights actually attach automatically to a work of art, a text, or any other creative work. Once the work is “fixed” in a particular medium, the copyright attaches to it. It protects the creator, and affords him/her the rights of a copyright holder, whether the holder takes any action to register the copyright or not. In order to be fixed, a work must simply be given some tangible or permanent form. For instance, a song is fixed once it is recorded; a text is copyrighted once it is written. While registering a work with the Copyright Office is not necessary in order to enjoy the rights of a copyright holder, it does provide some additional protections against infringement, and is a fairly simple process. To register a work with the U.S. Copyright Office, please visit our website at www.findlegalforms.com, and click the copyright link. Copyright Holder In most cases, a copyright is held by the creator of the work. For example, when an artist creates a sculpture, the copyright automatically attaches to the sculpture, with the artist being the holder of that copyright. However, in certain situations the party that hires the creator to create the work is considered to be the copyright owner, and the work is considered to be a “work for hire.” In this situation, the employer enjoys all the rights and protections afforded by the federal copyright statute. Rights Enjoyed by Copyright Holder Federal copyrights confer upon their holder a number of rights and protections. These rights are “bundled” together under the copyright umbrella, affording the copyright holder the ability to use, sell, or transfer the copyrighted material in virtually any manner he/she wishes. This bundle of rights includes the right to sell the copyrighted material, the right to copy it, the right to adapt it to another medium, the right to perform it, and the right to publish it. This list is not exhaustive, and there are a host of other rights included within the copyright bundle of rights. The rights conferred upon a copyright holder by federal law are exclusive; that is, they belong solely to the copyright holder. However, the copyright holder is entitled to license or assign those rights to a third party. The copyright holder can choose to license all of the rights, or only certain specific rights. In a license agreement, the rights are generally licensed for a defined period of time, after which the rights revert back to the copyright holder.
Work for Hire There are two general situations in which a work will be considered to be a work for hire. The first is where an employee creates a work within the scope of his or her employment. In that case, the work may be considered to be a work for hire, and the employer may be the sole and exclusive owner of the copyright in the work. The agreement included in this kit addresses the second case, in which an independent contractor is hired specifically to create a work for the employer. Under the Copyright Act, there are a number of conditions that must be met in order for a work created by an independent contractor to be considered a work for hire. Creation The independent contractor must be specifically commissioned or engaged to create the work in question for it to be considered a work for hire. Further, the contractor must be engaged by a signed writing prior to commencement of work on the project. For example, a work for hire agreement that is signed once an illustrator has already completed all or a portion of his work will generally not be sufficient to vest the copyright in that work in the employer. Categories of Work A work created by an independent contractor must also fall within one of nine specific categories of works in order to qualify as a work for hire. According to the nine categories set forth in the Copyright Act, a work for must be: 1. 2. 3. 4. 5. 6. 7. 8. 9. A contribution to a collective work A part of a motion picture of other audiovisual work A translation A supplementary work A compilation An instructional text A test Answer material for a test An atlas
Any work created by an independent contractor that does not fall within one of these prescribed categories can not be a work for hire. For more information about the workings of the Copyright Act or about the rules and regulations governing U.S. copyright law, please visit the website of the U.S. Copyright Office at www.copyright.gov. Employment Relationship It is important to note that under the laws of some states, an independent contractor that performs services under a work for hire arrangement may be deemed to be an employee for the purposes of having to pay for unemployment and/or workers compensation insurance. You are advised to consult a competent copyright attorney in your state prior to engaging an independent contractor to produce a work for hire.
WRITER’S WORK FOR HIRE AGREEMENT
THIS AGREEMENT is made this “Parties”). WHEREAS, Employer wishes to engage Contractor to create (Briefly describe the written work to be produced) (the “Work”) as a “work for hire”; AND WHEREAS, the Parties both intend for Employer to be considered the author of the Work for the purposes of all copyright and intellectual property issues, and for Employer to be the sole and exclusive owner of the copyright in the Work; NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows: 1. Work for Hire. After the execution of this Agreement, Contractor shall commence production of the Work. The Work shall be a work for hire, and Employer shall own the Work, and shall be the sole and exclusive owner of the copyright in the Work, including all rights of copyright registration, renewal and extension. Employer shall also be considered to be the author of the Work for the purposes of U.S. copyright law, and for the purposes of any other applicable state or federal laws. Contractor shall make no claim to ownership of the copyright in the Work, nor shall Contractor attempt to exercise any rights, privileges or protections afforded to a copyright holder. Contractor waives all moral rights in the Work. 2. Assignment. If for any reason the Work shall be deemed not to be a work for hire, then Contractor hereby transfers and assigns all rights, ownership and interest in the Work to Employer, including all interest in the copyright in the Work, and in any other intellectual property or moral rights in the Work. 3. Payment. Subject to the terms and conditions of Section 4 below, Employer shall pay Contractor a total sum of $ , divided into the following installments: a. Upon execution of this Agreement, Employer shall pay Contractor a sum of $ (the “Advance”). The Advance shall be paid in full to Contractor within 7 days of the execution of this Agreement. b. When the Work is completed and delivered to Employer, Employer shall pay Contractor a sum of $ (the “Delivery Payment”). The Delivery Payment shall be paid in full to Contractor within 14 days of the delivery of the work. 4. Delivery. day of , 20 , by and between (“Employer”) and (“Contractor”, and collectively, the
Writer’s Work for Hire Agreement
then Employer’s right to terminate this Agreement and recoup the Advance pursuant to Subsection (b) of this Section 4 shall become null and void. The Work will meet the following criteria in terms of form and quality upon delivery: . Writer’s Work for Hire Agreement 2 . If Contractor delivers the Work to Employer after the Scheduled Delivery Date. and to recoup the Advance from Contractor. Contractor represents and warrants that Contractor is the only creator of the Work. suits. Contractor’s Representations and Warranties. and that the Work does not infringe on the rights of any other person or entity. Independent Contractor. 6. Contractor agrees to indemnify and hold harmless Employer from any claims. If Employer refuses to accept delivery of the Work when Contractor attempts to deliver the Work after the Scheduled Delivery Date. Contractor represents and warrants that it has not granted. and has the legal ability and standing to execute this Agreement without the consent of any other person or entity. Contractor represents and warrants that Contractor has obtained all rights. licenses. nor will it attempt to grant in the future. In the event that Employer wishes to terminate this Agreement and recoup the Advance from the Contractor due to a failure to deliver the Work by the Scheduled Delivery Date. c. b. Contractor is an independent contractor providing services to Employer. Employer must send written notice of such termination and desire to recoup (the “Termination Notice”) to Contractor within 14 days of the date of termination. Employer shall have a right to terminate this Agreement as set forth in Subsection (b) of this Section 4. then Employer’s right to terminate this Agreement and recoup the Advance pursuant to Subsection (b) of this Section 4 shall remain intact and exercisable.a. Employer accepts delivery of the Work. a. actions. and is not an employee of Employer. or other permissions necessary for the production of the Work. 5. Indemnification. If Contractor fails to deliver the Work to Employer by the Scheduled Delivery Date. or other costs arising out of any breach of the representations and warranties set forth in Section 5 above. Nothing in this Agreement is intended to create or demonstrate an employment relationship between Contractor and Employer. including any copyright or other intellectual property rights. any other person or entity any rights or interest in the Work or in the copyright in the Work. c. b. The Work shall be completed and delivered to Employer on or prior to . damages. clearances. 20 (the “Scheduled Delivery Date”). and Contractor has not yet received a Termination Notice from Employer. 7.
Further Acts. This Agreement may be executed in several counterparts. This Agreement shall be construed in accordance with. or delivered by overnight delivery service. Writer’s Work for Hire Agreement 3 . relating to the subject matter of this Agreement. 12. each of which shall constitute an original and all of which. addressed as follows: If to Employer: If to Contractor: 13. Entire Agreement. without regard to conflicts of law principles. and governed in all respects by. Governing Law. Counterparts. then such provision shall be deemed to be construed as so limited. Headings. the laws of the State of ___________________. understandings or other agreements. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction. This Agreement constitutes the entire agreement between Employer and Contractor. and if limiting such provision would make the provision valid. the remainder of this Agreement shall continue in full force and effect. conditions. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement. shall constitute one agreement.8. 10. Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested. There are no other promises. whether oral or written. 9. and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. If any part or parts of this Agreement shall be held unenforceable for any reason. Notice. when taken together. Severability. 11. Contractor agrees to carry out any further actions necessary to ensure that Employer secures the copyright and other intellectual property rights in the Work. postage prepaid. 14.
IN WITNESS WHEREOF. the parties have caused this Agreement to be executed the day and year first above written. EMPLOYER Signature Print Name Title CONTRACTOR Signature Print Name Writer’s Work for Hire Agreement 4 .
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