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POST; should be Work for hire

This post is a bit long. I apologize if it is bothersome to anyone.

Brook wrote:

<I think there's been far too much made about rights, frankly. I know in 
my classes its something that concerns students far more than it should. 
And they tend to be confused by rights.>

<To answer your question, however, it's a simple matter of economics. If
somebody wants to hire me on a work-for-hire basis, and the money is 
right, they are welcome to all my output.>

I'm a photographer, so I'll address Brooks' comments from my 
perspective, because he professes his ignorance about work for hire in 
the photography world. (No disrespect intended, just my opinion here)

True, Brooks, simple is the operative word, but unfortunately, economics 
is simple only in theory, never in practice. Your own illustration is a 
good example:

<If somebody says to me, "we want to send you to Alaska for six months, 
pay all your expenses for you and your family, and then pay you $15,000 
for a photo essay when you get back," I'm gonna say "fine." If they then 
say, "oh, by the way, this is a work-for-hire agreement," I'm gonna say, 
"do you want me to fly or to drive." >

As if this were ever going to happen! Rarely, very rarely, almost never, 
does a work for hire publisher actually offer the value of all the 
rights inherently included in work for hire. Usually the price is for 
the usage they need, but the rights they obtain in WFH are worth alot 
more than that. It is a very powerful tool in the hands of the 
publisher, because it lets them keep the transaction very simple, from 
their point of view. They license the work and they own the work for all 
possible uses. End of story.

Where the creator continues to own the unlicensed rights still remaining 
(as contemplated by no less an authority than the US Constitution which 
grants original copyright to the creator) it is more cumbersome for the 
publisher to obtain further usage down the road, and more expensive. So 
their internal paper pushers, coached by their lawyers, turn to work for 
hire in an effort to keep costs down and make their work simpler.

But WFH was "created" so to speak, so that publishers could own the work 
of their own employees, using the publishers' tools, working under the 
publishers' direction, totally on the publishers' nickel. THere's some 
logic to this concept, although not much justice (that is, if you agree 
with the constitutional notion that the creator contributes the 
uniqueness to the creation). But when WFH is applied to a freelancer, 
the freelancer gains none of the benefits of the employee. I'll take WFH 
when the publisher is willing to pay me back all my overhead, including 
insurance, mileage, film & processing, etc. Until then, I retain the 
reuse, so that I can generate the income I need to keep my business 
running. Reusage fees are not an extra source of income for magazine and 
advertising photographers, it is an integral part of the business plan, 
and has been for several decades.

That's why it's a bad deal, especially for photographers - The majority 
of the value in many, many creative pieces, certainly in assignment 
photography, is in the reuse, not in the original creation. By signing 
away all ownership of your intellectual property, you give up the right 
and ability to generate income from it after the initial use. Does the 
publisher really need the African and Asian textbook and billboard 
rights of your piece? Well, he has it in work for hire (and hopefully 
you charged him for it, but it's not likely!). How about the greeting 
cards, calendars, non competing publications, textbooks, etc? Did you 
charge for that in your WFH agreement? Does this magazine really need 
those rights? Are they paying for them in work for hire agreements? 
Probably not. But you don't get to keep them either.

<To point is, there is nothing inherently evil about work-for-hire.> <sic>

The point is right, just as there is nothing inherently evil in heroin, 
but in the wrong hands in a particular culture, it is something to be 
avoided.

Far too much made about rights? It's in the US Constitution! I should 
hope there would be alot of noise made about them!

Here's a simple way to explain it to your students. It's used by most 
first year property law professors: Property rights are analogous to a 
bundle of sticks held in your fist. You can take one or several out and 
give them away or sell them and you retain the rest. Intellectual 
property rights are treated no differently. Try explaining it like that.

Rich Pomerantz
rich@richpomerantz.com
www.richpomerantz.com

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