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Re: POST; should be Work for hire


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

If you ever want to promote a strong reaction from photographers, you mention one of two things: work for hire or derived art. Either of them will send a photographer into a tizzy fit. Mention both in the same breadth, and you better be prepared to duck.

So, it comes as no surprise that if somebody was going to take me to task for my comments it would be a photographer. They do believe that work for hire is the epitomy of evil.

What you have to understand, on a practical, working level, Rich, is that photographs and written stories are not the same thing. You can take one photo, and sell it innumerable times. So for you, second rights are not a theoretical thing. They are very real, and affect your income. If you're any good at what you do, second rights represent a fairly significant part of your income.

However, 99.9999% of the time, this is not true with articles. The writer either doesn't care about second rights, or cannot find a reprint market for the story, or, as somebody posted, they rework the story for a new market. I repeat: If you rewrite it, then it is a new work, one for which you have not given up any rights to.

So, point one is that the photo market and the word market are different places, with different operating criterium.

Point two: Thanks very much, Rich, but I don't need any help explaining literary rights. What people have to understand is that they are real property, just like a house. And, just like a house, there are all sorts of ways of disposing of it. You can, for instance, sell the house outright. Or lease it. Or rent out part of it. Or lease it for a particular use. Etc. Literary rights line up exactly the same way.

Point three: I have never, in more than 40 years as an editor, staff writer, and freelancer, seen a work-for-hire contract offered for a freelance article. As you point out, work-for-hire is something designed for employees. Photo buyers have often tried to use it with freelancers. But magazine editors? What would be the point, when they merely have to put "all rights" in the contract.

Point four: You're right. The example I used was fictitious, to prove a point. The actual case it was based on, which was a job of work taken by a friend of mine, was actuall to go to India for a year. And the fee was $50,000 plus all expenses for him and his family. And, even though it was work for hire, all photos he took that had not been used by the publisher within a year were returned to him----which means, of course, that he got the best of both worlds because they were under no obligation to do that. But, then again, he didn't get on his high horse about work for hire. He just took himself and his cameras off to India.

For writers, the problem with all rights comes from publishers who, themselves, have other possible uses for the work. Maybe there are related magazines in the fold; or the publisher puts out anthologies, and so forth. In such a case---which is very rare indeed---I would be concerned about selling all rights, unless there was a comnensurate increase in payment.

For the normal article sale, however, what rights you sell are, most of the time, a tempest in a teapot. The editor doesn't write the contract, the corporate lawyers do. And the editor will, almost always, return rights to you after the story has appeared.

That's the reality of magazine freelancing, Rich, as opposed to any theoretical ideas you may have; or concepts you think you picked up in your introduction to constitutional law class.



Brook 
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