Copyrights, Contracts, & Guidelines for Dinosaur Artists & Paleontologists

Part 1 Copyrights
Works for Hire Works for Hire generally refer to creative work done within the scope of an artist’s or author’s employment or as a contribution to a collective effort such as moviemaking. Without an agreement to the contrary, works produced for others by a “freelancer” (in other words, an independent contractor) remain the property of the freelancer. Unfortunately there are increasing attempts by some art buyers to force freelancers to sign work-for-hire contracts. This is an extremely bad idea for an artist because it means the art buyer gets the copyright in the work as though the buyer did the work and not the artist. Furthermore, if the artist uses some portion of his work in another piece he could be sued for copying himself. There is no reason for a freelance artist to ever sign a work-for-hire contract unless the money is very, VERY, GOOD! Otherwise, the dangers far outweigh the advantages to his personal career, and allowing cheap art buyers to believe they can get away with this is injurious to the field in general. The freelancer, of course, can consider any number of non-exclusive licensing arrangements with others, provided that the freelancer does not make the mistake of entering into a subsequent license with one party which violates or contradicts the provisions of a prior license to another. The freelancer would do well to consult with an attorney on licensing arrangements.

If, however, an artist is offered a position with regular paychecks, benefits and health care, in other words a true “employee” position, then ordinarily everything produced by the artist is owned by the employer absent an expressed agreement with the employer to the contrary. The employee-artist still may consider signing a contract arrangement with an employer clarifying who owns what and any other relevant terms (for example, incentive compensation).

Circular 9 of the U.S. Copyright Act gives more details about work-for- hire, but I will cover some of the basics a freelancer would need to know to avoid, or knowingly accept such an arrangement. If the artist or author has no employer supervision at the time and place where a work is created, work-for-hire can only be applied to the work if the artist has specifically signed away his rights. (Beware of the word “assign” where copyright is concerned in a contract, going instead for the word “license” if you want to avoid work-for-hire.) However, the courts have maintained that certain conditions under which work is done constitute an employer-employee relationship requiring no contract to be considered work-for-hire.

They are:

  • When there is control by the employer over the work (e.g., the employer has a voice in how the work is done, the work is done at the employer’s location, and/or the employer provides equipment or other means to create the work.
  • When there is control by an employer over an artist (e.g., the employer controls the artist’s schedule in creating the work,has the right to have the artist perform other assignments, determines the method of payment and/or has the right to hire the artist's assistants).
  • When the employer is in business to produce such works, provides the artist with benefits and/or withholds tax from the artist’s payment.

Control or supervision over the creation of a work doesn’t automatically make that work a work for hire, but the closer a freelancer’s arrangement comes to looking like a regular salaried position the more he or she should seek legal advice especially if the freelancer does not intend that his/her work constitute a work-for-hire.

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