A PSA to U.S. publishers that do not have legal departments

(and to anyone else in the United States who hires freelance designers):

If the designer of your book’s jacket or interior is not an employee of your company, rather than an independent contractor, and if you do not have a written contract that expressly says that the design work was done “for hire,” then you do not own the design.

This means that if you or anyone else wishes to reuse it—say, if you sell paperback or foreign rights to another publisher—you can’t just send along the layout files. You do not own them. They do not belong to you. You must negotiate a usage fee with the designer. It will probably cost you money.

Ouch.

IANAL, of course, but like many people who work in publishing, I know how to read:

Section 101 of the copyright law defines a “work made for hire” as:

  1. a work prepared by an employee within the scope of his or her employment;
    or
  2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

. . .

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work, and part 2 of the statutory definition applies. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

Think that freelance designer is your employee? Think again:

certain factors . . . characterize an “employer-employee” relationship as defined by agency law:

  1. Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
  2. Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee’s assistants)
  3. Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)

These factors are not exhaustive.

If you, too, know how to read, you can see for yourself: Works Made for Hire Under the 1976 Copyright Act (PDF, 72 KB)

And while I’m on the subject of law, some business owners might want to further expand their understanding of who is an independent contractor, from the perspective of the IRS: Independent Contractors vs. Employees.

Hint: If the person is working in your office, during hours you specify, using your software (bootlegged or not) and equipment, and you frequently wander over to see if he or she is doing a task in the way you want it done, then that person is an employee, whether you wish to pay his or her Social Security, Medicare, and unemployment taxes or not.

If you’re really curious about this subject, take a casual thumb through the Graphic Artists Guild Handbook: Pricing & Ethical Guidelines. Legal tips, sample contracts, and more.

We will now return to your regularly scheduled program. Go play.

3 thoughts on “A PSA to U.S. publishers that do not have legal departments

  1. This is very true. I’m a management and financial consultant to book publishers, and I have seen too many mid-sized firms get hung up on both issues in this post.

    Strangely enough, some of them even think that a contract can over-ride the law by defining the person as an independent contractor. It doesn’t.

    The IRS, the Dept. of Labor, and your state’s Unemployment Insurance will not care what you define the relationship to be. The law defines when employers need to collect and pay various things, and that’s what’s enforced.

  2. Thanks for commenting, Marion. It’s heartening to hear that book publishers even have management and financial consultants to tell them these things—though I doubt that the firms I’ve witnessed constantly abusing these laws would ever think it necessary to seek such advice.

    In my experience, it’s not the publishers who get hung up on such issues—the thought that what they’re doing is illegal and unethical never seems to cross their minds, though they assert these same rights on their own behalf in numerous other contexts, every day. Rather, it’s the freelancers who suffer, knowing that (a) they are being taken advantage of, and (b) if they demand the compensation that is due to them, they’re likely not to receive any future work from that client. There’s always someone else who’s ready to be stomped all over.

    It’s very similar to the spec work situation—unless independent designers stand firm together, they’ll all keep getting screwed.

  3. Clarification: A friend tells me that it’s not the design that the designer owns, per se, because anybody can rip off your design as long as they make it from scratch. But the designer does own the files, and it’s those that the publisher can’t whore around to whomsoever.

    Can anybody confirm or deny this? He said it’s like how you can’t copyright a font, you can only copyright the software that describes the font, but that doesn’t sound right. You can’t copyright a font because the gubmint says you can’t copyright the alphabet, and they refuse to recognize that a font design is a creative work. Which is stupid, by the way. But my point is that it’s not the same situation. A book jacket isn’t the alphabet.

    It is still unethical to exactly copy someone else’s design just to get around paying a usage fee, mind you. Those who do this are dirty, nasty people.

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