This work made for hire agreement is between
The parties wish to memorialize their understanding of how that intellectual property will be created and treated.
The parties therefore agree as follows:
1. MATERIALS; WORK-FOR-HIRE.
The Publisher hereby commissions the Author to create the Materials for the Publisher, according to the specifications set forth in Exhibit A. The parties will consider those Materials "works made for hire" by and for the Publisher, as that term is defined in §101 of the Copyright Act of 1976.
2. TERM AND TERMINATION.
- (a) Term. This agreement will become effective as described in section 21. Unless it is terminated earlier in accordance with subsection (b), this agreement will continue until the Materials have been satisfactorily completed and the Author has been paid in full for such Materials (the "Term").
- (b) Termination. This agreement may be terminated:
- (i) by either party on provision of
days' written notice to the other party, with or without cause; - (ii) by either party for a material breach of any provision of this agreement by the other party, if the other party's material breach is not cured within
days of receipt of written notice of the breach; or - (iii) by the Publisher at any time and without prior notice, if the Author is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Publisher, or is guilty of serious misconduct in connection with performance under this agreement
. ; or (iv) automatically, on the death of the Author.
- (i) by either party on provision of
- (c) Effect of Termination. After the termination of this agreement for any reason, the Publisher shall promptly pay the Author for services rendered before the effective date of the termination.
3. DELIVERY.
- (a) Delivery Date. By
, the Author shall deliver the Materials to the Publisher for publication, in form and content acceptable to the Publisher. The Author shall deliver the Materials . - (b) Form of Delivery.
. - (c) Supplemental Information. If submitting any photograph or artwork under this agreement, the Author shall simultaneously furnish to the Publisher background facts and identification of persons represented in those works sufficient to enable appropriate, accurate captions and accompanying text to be written. On the Publisher's reasonable request, the Author shall furnish to the Publisher written releases from all persons whose likenesses appear in the works. If the Materials contain any matter that is copyrighted by anyone else, the Author shall obtain and submit to the Publisher written permission for the Publisher to publish the copyrighted elements.
- (d) Verification of Materials. The Author shall verify all facts in the Materials that are textual and furnish the verification materials to the Publisher at the Publisher's request, although the Publisher shall have the right to check the Materials for accuracy.
- (e) Failure to Deliver. If the Author does not for any reason complete or deliver the Materials and related documentation within the time and the manner provided in this agreement (a "Material Insufficiency"), the Publisher may:
- (i) terminate this agreement, in which event the Publisher shall be released from any further obligations to the Author, including the obligation to pay the Author;
- (ii) maintain the rights granted by the Author to the Publisher under this agreement and reduce the Publisher's payment obligation to the Author to a reasonable fee, which will reflect a fair price taking into consideration the Material Insufficiency, in the Publisher's reasonable sole discretion, which shall be at least $10.00 (the "Adjusted Fee"); or
- (iii) specify a new date by which the Author shall complete and deliver the Materials and related documentation to the Publisher. If requested by the Publisher, the Author shall promptly make changes in the Materials at no additional charge to the Publisher.
4. OWNERSHIP OF THE MATERIALS AND DERIVATIVE WORKS.
- (a) Work for Hire. The work to be supplied by the Author under this agreement will be deemed a "work made for hire" under U.S. copyright laws, and the Publisher deemed the sole author of the Materials and the owner of all interest and proceeds of every kind, whether now known or later devised (including all copyrights and extensions and renewals of copyrights) to the Materials, with the right to make all uses of the Materials throughout the universe and all changes in the Materials as the Publisher deems necessary or desirable. If and to the extent the Materials are not deemed "works made for hire," the Author hereby transfers to the Publisher all of its interest in the Materials, together with exclusively, irrevocably, and in perpetuity, and throughout the universe, all interest (including all rights of copyright) in the Materials, including the right to enforce its right in and to secure registrations, renewals, reissues, and extensions of those. The Publisher may transform, edit, alter, distort, modify, add to, subtract from, enhance, broadcast, telecast, duplicate, distribute, or otherwise exhibit the Materials worldwide in all forms of media and forms of exploitation, now known or later created including websites, film, television, radio, and print. The Author will have no right to approve any use of the Materials. No third party has or will have any right of approval over the use of the Materials or will be due any amounts from the use of Materials.
- (b) Sole Proprietor. The Publisher shall be the proprietor of the Materials and of all rights in the Material throughout the world including the copyright and all rights under copyright in those.
- (c) Right to Change. The Publisher may revise the Materials as it deems appropriate to prepare them for publication. The Publisher may publish or may not publish the Materials.
- (d) Moral Rights. Any assignment of intellectual property under this agreement includes all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as or referred to as "moral rights" (collectively "Moral Rights"). If those Moral Rights cannot be assigned under applicable law and if the following is allowed by the laws in the various countries in which Moral Rights exist, the Author hereby waives those Moral Rights and consents to any Publisher action that would violate those Moral Rights in the absence of that consent. The Author shall confirm any waivers and consents as requested by the Publisher.
- (e) Authorial Credit. In any publication of the Materials, the Publisher may, and may authorize others to, identify and credit the Author as the
author illustrator artist photographer , and the Publisher may use or authorize the use of the Author's name and pertinent biographical data in connection with the advertising or promotion of publication of the Materials.
5. PAYMENTS.
(a) Fee. The Publisher shall pay to the Author $ (the "Fee"). (b) Invoices. The Author shall invoice the Publisher for: (i) one-third (1/3) of the Fee after commencement of the services; (i) $ . (ii) one-third (1/3) of the Fee after initial submission of Materials; and (iii) one-third (1/3) of the Fee after delivery of the final draft of the Materials; or (iv) in the event of a Material Insufficiency, the Adjusted Fee.
6. NO PUBLICITY.
Any publicity, including press releases or other information in connection with this agreement is under the sole control of the Publisher. The Author shall not consent to or authorize any person or entity to release any information concerning this agreement without the prior written approval of the Publisher.
7. INFRINGEMENT.
- (a) Notification of Infringement. The Author shall notify the Publisher promptly after becoming aware of any alleged, potential, or actual infringement of the Materials or in the Materials.
- (b) Cooperation. The parties shall cooperate in any copyright infringement action controlled by the other party. However, the controlling party will reimburse the cooperating party promptly for any costs and expenses incurred by the cooperating party in connection with providing such assistance.
8. AUTHOR'S REPRESENTATIONS.
The Author represents that:
- (a) all Materials prepared and submitted by the Author are original and do not infringe any copyright, invade any right of privacy, contain any libelous Materials, or infringe or violate any other right of any other person or entity; and
- (b) there is no outstanding contract, commitment, agreement, or legal impediment of any kind that conflicts with this agreement or that might limit, restrict, or impair the rights granted or agreed to be granted to the Publisher under this agreement.
9. THIRD PARTIES; TAXES.
- (a) Third Parties. The Author may not commit the Publisher to any agreements with any third parties.
- (b) Author's Taxes. Author represents that the Author is solely liable for and will pay all applicable taxes on all amounts earned under this agreement.
- (c) Publisher's Taxes. The Publisher shall be responsible for and shall pay any sales, use, or similar taxes applicable to this transaction.
10. NATURE OF RELATIONSHIP.
The relationship of the parties under the agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of that authority.
11. INDEMNIFICATION.
- (a) Of Publisher by Author. At all times after the effective date of this agreement, the Author shall indemnify the Publisher against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of:
- (i) the Author's negligence or willful misconduct arising from the Author's carrying out of its obligations under this agreement;
- (ii) the Author's breach of any of its obligations or representations under this agreement;
- (iii) the payment of taxes for the Author's services; or
- (iv) the Author's breach of his or her express representation that he or she is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If a regulatory body or court of competent jurisdiction finds that the Author is not an independent contractor or is not in compliance with applicable laws related to work as an independent contractor, based on the Author's own actions, the Author will assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Author or the Publisher resulting from that contrary interpretation, including taxes, assessments, and penalties that would have been deducted from the Author's earnings if the Author had been on the Publisher's payroll and employed as a Publisher employee.
- (b) Of Author by Publisher. The Publisher shall at all times indemnify the Author against a Loss or Litigation Expense arising out of:
- (i) the Publisher's negligence or willful misconduct arising from the Publisher's carrying out of its obligations under this agreement;
- (ii) any breach of any of the representations or agreements made by the Publisher under this agreement; or
- (iii) the Publisher's operation of its business.
12. GOVERNING LAW.
- (a) Choice of Law. The laws of the state of
govern this agreement (without giving effect to its conflicts of law principles). - (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in
County, .
13. AMENDMENTS.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
14. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. The Author may not delegate any performance under this agreement, except with the prior written consent of the Publisher.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
15. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
16. SEVERABILITY.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
17. NOTICES.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Author:
- If to the Publisher:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
18. WAIVER.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
19. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
20. HEADINGS.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
21. EFFECTIVENESS.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
22. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
[SIGNATURE PAGE FOLLOWS]
Each party is signing this agreement on the date stated opposite that party's signature.
| Date: _____________________________ | By: _________________________________________________________ |
| Name: |
|
| Date: _____________________________ | By: _________________________________________________________ |
| Name: |
[PAGE BREAK HERE]
EXHIBIT A
SPECIFICATIONS SHEET
The following restrictions apply towards any written works of authorship specifically ordered or commissioned by the Publisher:
| 1. |
|
How-to guides, articles, and any other content appearing on this page are for informational purposes only, do not constitute legal advice, and are no substitute for the advice of an attorney.
Work made for hire agreement: How-to guide
Businesses spend considerable time and money developing new ideas and products. They often turn to employees to create new and innovative materials. After investing their time and money into their creation, those companies will want to ensure that they own the goods that are produced during his or her employment. A work-made-for-hire agreement can provide such assurance.
A well-drafted work-for-hire agreement:
- Outlines each party’s rights and responsibilities and allows the parties to negotiate and determine what services and materials to be provided
- Ensures both parties understand that ownership rights remain with the company.
The attached template can be a good starting point for your arrangement. To make it comprehensive, you and the author must discuss and agree on the terms of your agreement and settle questions about work parameters, payment, and responsibilities.
Once both parties expressly agree on the terms and have signed the form, each party can focus on its area of expertise: the company on the development of its business and the author on the tasks assigned.
Important points to consider for a work-made-for-hire agreement
Explanation of work-made-for-hire
Under federal copyright law, a work is protected by copyright from the time it is created in a “fixed form.”
Another way of saying this is that when a work is written down or recorded, it immediately becomes the property of its author, who is the sole person who can claim copyright. An exception to this rule is for specific categories of works called “works made for hire.” If something is a work made for hire, the employer or the commissioner of the item is considered its author and not the actual creator.
Situations when work-made-for-hire is valid
Generally speaking, work created by employees for employers is considered work made for hire. However, there is no exact standard for determining when a work is made for hire or even who will be regarded as an employee of a company. Getting a signed written agreement specifying that something is a work made for hire is a good idea to protect your company.
In some cases, you can enter a work-made-for-hire agreement with non-employees of your company, like independent contractors.
However, the work you commission must fall into one of nine limited categories:
- Contribution to a collective work
- Part of a motion picture or other audiovisual work
- Translation
- Supplementary work
- Compilation
- Instructional text
- Test
- Answer material for a test
- Atlas.
If the work produced does not fall into such works, the copyright owner becomes the company and not the author.
Benefits of work-made-for-hire
Suppose you agree with an individual specifying that a work is made for hire. In that case, many states will infer a generalized employment relationship and require that you deduct taxes, pay workers’ compensation insurance, and provide other employer-employee benefits. This is true even if all other factors would generally make the relationship one between an independent contractor and the company. Review your state’s rules to know the consequences of entering into a work-made-for-hire agreement.
Reviews and revisions required
Allow each party to spend time reviewing the agreement. This will reduce the likelihood, or the efficacy, of a claim that a party did not understand any terms or how those might affect the document as a whole.
When both parties review the documents from different points of view, it ensures that all the points are included. Also, this avoids any assumptions that certain terms are agreed upon by the parties, even if not explicitly stated in the agreement.
Signatures from all parties to close the deal
Create two copies of the agreement, one for you and one for the other party, and get the written instrument signed. Depending on the nature of its terms, you may decide to have your agreement witnessed or notarized. This will limit later challenges to the validity of a party’s signature.
If your agreement is complicated, contact an attorney to help create a document that meets your requirements.
Key components in a work-made-for-hire agreement
Before sitting down to customize your agreement, decide your goals. The contract can contain any agreed-on terms but should, at a minimum, include a description of the author’s tasks, the amount to be paid, the terms of payment, deadlines for completion, and the end products expected (e.g., slides, photographs, CDs, articles, etc.). Clarify the terms and conditions of your agreement as a written instrument.
The following instructions will help you understand the terms of your agreement.
Introduction
In this first section, add the date when the agreement will become effective. Mention the parties involved, like the hiring party’s name (“company”) and the party providing the materials (“author.”) Instead of “author,” you can use terms like photographer, filmmaker, etc., that suit your arrangement better.
Recitals
This clause, also known as the “whereas” clause, defines the agreement in-depth and offers crucial background information about the parties. In this agreement, the recitals include a simple statement of your intent to enter into a work-made-for-hire arrangement. In the first paragraph of the recitals, describe in detail the work prepared by the author.
Materials; work for hire
This section describes the company’s appointment and the author’s acceptance of the appointment to create the materials. This section also emphasizes that any materials or valid work created will be considered property of the company (i.e., a “work made for hire”).
Delivery
This section sets forth the terms and conditions governing the author’s submission of the materials to the company.
- Delivery date: Enter the date by which all materials must be delivered in final form. If you want to specify a particular employee (or department) at the company to whom the materials should be delivered, provide such details.
- Form of delivery: Allows you to specify the form that the delivery of the materials should take. This will depend on the type of work that is being undertaken.
- Supplemental information: Sometimes, just providing the materials will not allow the company to use them. In those cases, the recipient will need supplemental information for its protection. This subsection addresses certain types of additional information that may be required. For example, if the commissioned materials are photographs or other images, the author will be responsible for obtaining model releases. The company would need such releases before an image could be used for trade or advertising, even if the pictures are of company employees.
- Verification of materials: Here, the author must verify the truth of any facts in their work and keep records of that verification.
- Failure to deliver: This section explains the consequences if the author doesn’t finish the materials or turn them over on time, for example:
- The company can choose to end the agreement without additional obligations, including any obligation to pay the author. The company can also decline to assign additional projects to the author.
- The company can keep its rights to the materials and pay the author part of the original fee, reduced by the amount that the company thinks is reasonable given the defect or delay in delivery.
- The hiring party can set a new date for delivery of the materials and decide to provide no extra fees for any additional work.
Ownership of the materials and derivative works
- Work for hire: This section again emphasizes that the materials created under the agreement are works made for hire, and the company will, therefore, be considered the author of those materials. If, for any reason, the work created is said not to be a work made for hire, the author agrees to a copyright assignment to the company, thereby giving the ownership that was supposed to be given by creating a work made for hire.
- Sole proprietor: This section indicates that the commissioning party is the company, and the copyright to the materials is with them.
- Right to change: This section allows the company to edit or not edit, use, or not use the original work at its discretion. In other words, although the company has the right to use the author’s materials for their own purposes, they don’t have to do so. It is obtaining the exclusive rights and the ability to change it without the obligation of having to.
- Moral rights: “Moral rights” are certain intellectual property rights maintained in countries other than the United States. In some cases, these rights cannot be assigned. To the extent that the author has any such rights, they waive their right to enforce them against the company in those countries.
- Authorial credit: This section permits the company to use the author’s name to attribute actual authorship of the materials if they choose to do so.
Payments
This section discusses what the author will receive in exchange for the materials they provide. Either the company will make a one-time full payment to the author when the materials are complete and received. The company can also construct a different payment schedule according to their arrangement.
No publicity
This clause permits the company to control the materials used and how the author can provide information about the agreement and other trade secrets to any third party.
Infringement
- Notification of infringement: This section mentions that if the author discovers that a third party is using the materials without permission or finds out that the materials infringe on a third party’s work, they will notify the company immediately.
- Cooperation: If a copyright infringement case is brought in the Supreme Court on behalf of or against the materials, this section promises that both parties will participate.
Author’s representations and warranties
This section details the author’s promises under the agreement. Essentially, they agree to enter the arrangement based on the conditions in this section. The author also agrees in this section that the materials they have prepared aren’t illegal by being defamatory, libelous, or violating another person’s copyright. If there are other promises you wish the author to make as a condition to entering into the agreement, add those in this section as well.
Third parties; taxes
This section mentions that the author can’t bind the company into agreements with third parties. This section also states that the author will pay taxes on any income earned due to the agreement. Review your state’s laws for additional information about the tax consequences of entering into this agreement.
Termination
This section explains how specific actions or events, including written notice or material breach, will cause the agreement to end before the services are completed or the end of the term, if any. Write the amount of notice a party must give of its intent to terminate or to notify the other of a breach.
Indemnification
This clause allocates responsibilities between the parties if problems arise in the future and protects the company from the financial consequences of the author’s negligent or intentional conduct.
Assignment
This section explains that the company may assign its obligations and interests without the author’s permission. However, the author can’t assign their interests under the agreement.
Governing law
This section allows the parties to choose the state laws used to interpret the document.
Severability
This section protects the terms of the agreement as a whole, even if one part is later invalidated. For example, if a state law is passed prohibiting choice-of-law clauses, it will not undo the entire agreement. Instead, only the section dealing with the choice of law would be invalidated, leaving the remainder of the agreement enforceable.
Counterparts; electronic signatures
This section clarifies that even if the parties sign the termination in different locations, physically or electronically, the separate pieces will be considered part of the same document. In a modern world where signing parties are often not in the same city—much less the same room—this provision ensures that business can be transacted efficiently without sacrificing the agreement’s validity.
Frequently asked questions
What’s a work-made-for-hire agreement?
Are you commissioning photos or hiring an author to ghostwrite your memoir? A work-made-for-hire agreement sorts out what the creative is expected to deliver, when, and how you'll need to credit and compensate them.
What details are required for a work-made-for-hire contract?
Here’s the information you'll need to have ready to complete your work-made-for-hire agreement:
- Who's creating the work: Have their name and contact information ready
- Who's paying to use the work: Have their name and contact information ready. This is probably you or the company you represent
- How the work will be delivered: Know the format and delivery method
- How payment and credit will work: Know how much the creator will be paid and if and how they will be credited
Free Work Made for Hire Agreement Template
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