As a ghostwriter for hire, I’ve signed on the dotted line for hundreds of writer for hire contracts, screenwriter for hire contracts, and freelancer contracts.
Even after collaborating on so many “writer for hire” agreements, I’d be a red-faced liar if I didn’t admit I sometimes feel a slight pang of regret. I think this is quite typical for ghostwriters – whether the project is personal or not, we put a lot of our soul into it. However, I have to remind myself that writer for hire agreements aren’t always evil. When I sense that sour taste in my mouth coming on, I revisit the following “work for hire” questions and answers. It takes a bit of the pain away.
Note* Download Work for Hire Contract Here. We’ve also pasted this same contract further below, with some explanations on various points that you may want to adjust, based on your project.
Question: I thought a work is copyright protected the moment it’s written? And if so, doesn’t this make a work for hire contract moot?
Answer: That grocery list you wrote this morning is effectively copyrighted the moment it eked out of your pen. After all, it did sound a bit haiku-like, didn’t it? The U.S. Copyright Act uses the term “author” when referring to any creator: writers, composers, filmmakers, architects, computer programmers – anyone who creates an “original work of authorship” earns copyright the moment it’s in a tangible form.
When it comes to “work for hire” contracts, the “author,” and thereby the owner of the copyright the moment the work is created, is owned by the Client who commissioned said work. By default, the work for hire agreement strips the writer of all rights, with the work’s copyright bestowed upon the Client. When signing the work for hire agreement, make peace with the fact that you are a hired gun, effectively renting out your writing ability to the Client. If you resolve from the beginning that the project is not your passion project, but your client’s passion project, you’ll get along much easier.
Question: If I sign a “work for hire” contract, do I have any rights over the work?
Answer: If the Client in the contract does not specify any rights to you, the writer, then the answer is “no.” Everything you create concerning the project is purely on a “for hire” basis. This is very important to keep in mind, particularly if down the road you plan to write another script or story based on characters in this work. Doing so would infringe on the Client’s copyright of this work for hire agreement. And unlike a simple “grant for rights” agreement, where you bestow rights on the Client for a certain number of years or until terminated by you – a work for hire contract is for all eternity. If you’re writing a screenplay, consider signing a screenwriter for hire contract instead of a “writer for hire” agreement.
Question: Does this mean I should bare my teeth at all “work for hire” contracts?
Answer: Of course not. If you don’t foresee yourself wanting to create derivative works based on the project’s characters, then there is no reason to fear the “work for hire” agreement. As a freelance writer, you undoubtedly work on a number of projects that do not tempt you to hold a copyright. Such projects include: press releases, instruction manuals, marketing copy, etc.
However, you may be hired to ghostwrite a novel, short story, video game, or screenplay. These creative writing endeavors will likely take away a tiny piece of your soul. But as a writer, you have a lot of soul, right? Think carefully before signing a work for hire agreement when it comes to these creative works. Having said that, I’ve signed dozens of “work made for hire” contracts on creative work, often negotiating a higher rate to make the sacrifice of relinquishing all rights worth it to me. For projects where I retain a portion of the copyright (often with a screenwriter for hire contract, wherein ownership of the screenplay is mutually shared), I usually charge less.
Question: What is a “work for hire” anyway?
Answer: The U.S. Copyright Act states two situations:
- when you, an “employee” creates any type of copyright-able work within the job scope.
- When you, as a non-employee, are commissioned to create a designated work and have agreed with the commissioning party that the work is “made for hire.”
In the first scenario, you are an employee, and consequently do not need to sign a written agreement for such a project. This is usually when you are onsite for an employer, using their computers, receiving a paycheck, etc. It’s pretty much your responsibility as an employee to create work for your employer, with the understanding that you retain zero copyrights.
In the second scenario, you are an independent contract or freelancer. You are not an employee of the commissioning party, you are a professional that is hired by the Client. This is why a written agreement is required.
Question: Is a “work made for hire” contract null if signed after the work is completed?
Answer: Essentially, yes. Prior to the effort, both parties should have signed a work made for hire agreement. Most courts will not honor a simple “oral agreement” that a work was made for hire. As a writer, it’s important to enter into a contract – even if the work is not made for hire – to minimize the chance of the Client retroactively claiming “work made for hire.”
There have been many projects I’ve engaged in that were not “work made for hire.” Sometimes we’ve shared copyright, and it always is a personal choice and something to be negotiated with the Client.
Question: What projects can be deemed as “work for hire”?
Answer: There are nine in total:
- 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
- as an atlas
This is why you often see a clause in “writer for hire” contracts that says something along the lines of: “if for any reason the work does not qualify as a ‘work made for hire,’ writer hereby assigns to the Client all right, title, and interest in the work, including, but not limited to, all copyrights therein throughout the world.”
However, if the work fits outside the nine designated types purview, then the writer may still retain the right to terminate the transfer of rights after 35 years.
Question: How can I bargain for a better agreement?
Answer: If you are commissioned to create a work, and you don’t feel comfortable signing a “work for hire” agreement (perhaps you want to use the characters you create for another project, etc), then you can negotiate to grant less extensive rights and sign a “freelance writer for hire” agreement instead. Limit the amount of time the Client owns exclusive rights, whereby you can initiate a termination of transfer. If this doesn’t fly, bargain for more money. You may also propose that if the Client decides to abandon the project, then the copyright can revert to you.
Writer for Hire Contract for Ghostwriters
Feel free to use this “WORK-FOR-HIRE WRITING AGREEMENT” contract, whether you are a client hiring a ghostwriter or you’re a contractor who has a client that’s requested a ghostwriting contract. The agreement is in it’s entirety attached. We’ve also posted a ghostwriting contract below with additional explanations.
WORK-FOR-HIRE WRITING AGREEMENT
This Work-for-Hire Freelance Writing Agreement (“Agreement”) is hereby entered into as of this Day day of Month, 2016 (“Effective Date”) between the Ghostwriter and Client noted below, with respect to the Services and Project defined herein below.
Writer Name (“Ghostwriter”):
Address: Writer Home or Business Address
Contact: Writer Contact Name
Telephone: Writer Telephone
Email: Writer Email
Client Name (“Client”):
Business Name: Client Business Name
Address: Client Home or Business Address
Contact: Client Contact Name
Telephone: Client Contact Telephone
Email: Client Contact Email
Terms & Conditions
Subject to the terms and conditions set forth herein, Client hereby engages Ghostwriter to perform, and Ghostwriter agrees to perform, professional freelance writing services (“Work”) to be performed on/for the following project (s):
List Project(s) (“Project”)
Upon completion, Ghostwriter shall submit the completed Project in written form in format reasonably acceptable to Client. Subject to the terms set forth herein, including Paragraph 3 below, the manner and method of producing the Project is solely at the discretion of Ghostwriter as long as they comply with Client requirements, which Client shall communicate in writing to Ghostwriter. Ghostwriter is obliged to work only on the Project and the Client is not entitled to demand Ghostwriter’s engagement in another project unless or until Client and Ghostwriter enter into a separate agreement to cover such project on mutually agreed-upon terms.
(Editor Note: You’ll notice the language above is here to protect the interest of the Ghostwriter who likely is working on other projects – personal or for other clients – concurrently. The last thing a writer would want is for the client to claim a stake in his projects, outside the purview of the contract).
OBLIGATIONS AND WARRANTIES OF GHOSTWRITER.
(a) Upon submitting the Project to the Client, Ghostwriter represents and warrants that the Project (or any part of it): is plagiarism-free and original; complies with all requirements provided by the Client; has not been obtained by unlawful means; has not been previously published in any manner or medium, specifically including but not limited to, print or electronic means.
(b) The Ghostwriter acknowledges and agrees that if they fail to adequately complete the Project by the due date the Client has the sole right to cancel this Agreement; provided that Client must pay Ghostwriter a reasonable prorated amount of the Fees proportionate to that portion of the Project completed to date. If the Ghostwriter fails to meet the Project deadline, they must contact the Client to request deadline extension at least 24 hours prior to the due date. Extension is not guaranteed and can be granted at Client’s sole discretion.
(c) The Project must conform to general readability standards as determined by the Client. Ghostwriter acknowledges and represents that if the Project fails to conform to the general readability standards, the Client has the sole right to request immediate revision of Project, deny payment, and/or cancel this Agreement.
(Editor Note: The above may or not apply to you, depending on what State you live in. Some states require payment for work done regardless of acceptability. Regardless, it is in the best interest of both parties that the Client closely monitors the work at each project stage. Project stages can be outlined in terms of milestones/drafts and stipulate opportunities for the Client to provide progress reviews. As in all partnerships, communication is key. To protect the Ghostwriter and ensure the project continues to move forward, it’s best that a timeline is agreed to, in which the Client has a limited period of time to review the work and provide feedback. If the milestone review period elapses before Client provides feedback, then the milestone ought to be paid for and considered completed).
Client agrees to pay Ghostwriter: $___ per hour
(Editor Note: Compensation can be altered of course, depending on the Project’s scope. For example, some Ghostwriters are paid per word – in which case compensation would be outlined in the contract as per word. Likewise, some projects may best be compensated for via a flat-fee. The method of compensation that suits your project best is up to the Client and Ghostwriter).
If the parameters of the Project changes, or if it involves much more time than originally estimated, Ghostwriter will inform Client and they can renegotiate compensation. Ghostwriter will bill for half of the total estimated cost when Ghostwriter begins the Work and the rest upon completion. Ghostwriter will submit the final invoice for the Work upon receiving approval from Client. If Ghostwriter has not received any comments or revisions within a week of submitting a completed draft, Ghostwriter will send the invoice.
Ghostwriter is responsible for the payment of all federal, state and/or local taxes with respect to the Work he/she performs for the Client as an independent contractor. The Client will not treat Ghostwriter as an employee for any purpose. Any verbal or written changes made by Client to the scope of the Work following its initiation by Ghostwriter are subject to additional charges. Should such changes negate any part of the Work already completed at the time of the changes, Client accepts responsibility for payment of the completed work and all services related to it, in addition to charges for the change itself.
PAYMENT AND COLLECTION; JURISDICTION.
Unless otherwise specified in writing, invoices not paid within 30 days of the invoice date will accrue interest at 1.5% per month. Client agrees to pay for each check returned for insufficient funds or any other reason $35 per occurrence or 5% of the value of each returned item, whichever is greater. Client agrees to pay all reasonable attorney’s fees (at least 15% of all amounts due, including interest) if any account is placed with an attorney for collection. Client agrees that the purchase of the services described herein constitutes “doing business” in the State of Ghostwriter’s Residence and submits itself to the jurisdiction of the State of Jurisdiction with respect to any suit brought by Ghostwriter to collect any sums hereunder. The parties agree that the only venue for any suit brought by either of them with respect to the services sold hereunder shall be in the State Court of Venue County.
INDEPENDENT CONTRACTOR STATUS.
(a) The parties expressly agree and acknowledge that the relationship created by this Agreement is one of Independent Contractor. Ghostwriter is not the employee of the Client. The Ghostwriter agrees to be treated as an Independent Contractor for all employment purposes. Therefore, no payroll deductions for employment taxes or insurance of any kind shall be paid by the Client for or on Ghostwriter’s behalf. Payroll deductions, employment taxes and insurance that are subject to this paragraph include but are not limited to FICA, federal, state, and local income tax withholding; state disability insurance; state unemployment insurance; and workers compensation insurance.
(b) In order to meet State and Federal rules and regulations applicable to Independent Contractor status, the Ghostwriter must meet the following criteria: (i) be engaged in a distinct occupation or business; (ii) perform services without direct supervision; (iii) provide tools & equipment for said services; and (iv) provide business license, and/or Federal I.D. number, or valid Social Security Number.
(c) The Ghostwriter shall not hold himself/herself out to the public as an employee, agent, or partner of or with the Client. The Client is engaged in the business of Client’s Business and is not an employer, partner or joint venture of or with the Ghostwriter. MATERIALS. The Client agrees to furnish the Ghostwriter with all necessary materials needed to complete the Work described herein. Such materials may include, but are not limited to, podcast files, articles, training documents, client’s products, passwords/logins, marketing collateral, feedback and guidance on what the Client’s objectives are, and other materials.
(Editor’s Note: Include applicable materials, as needed).
This Agreement will begin on the Effective Date set forth above and shall continue until terminated as provided herein by either party. If either party violates a term of this Agreement, then the other party (the “Non-breaching Party”) may terminate this Agreement, effective immediately upon delivery of written notice of termination by the Non-breaching Party. Notwithstanding the foregoing, either party may terminate this Agreement at any time for any or no reason, effective upon three (3) days written notice. Upon written or verbal cancellation, Client is responsible for payment for all expenses incurred and any Work performed by Ghostwriter toward the completion of the project based on the percentage of project completed. Should Client cancel the project following its completion, Client is responsible for full payment as per the above estimate plus all other expenses incurred.
All original Work created for this project shall be considered “work-for-hire” performed in the United States of America. The copyright for all Work produced under this agreement shall belong to the Ghostwriter until 100% of payment has been received. Upon receiving full payment, the Ghostwriter shall transfer all rights to the Client. Client shall exclusively own in perpetuity all now known or hereafter existing rights of every nature worldwide pertaining to such Work in or as part of any version of the Client’s publications that are published in print or displayed through computer-assisted and other interactive media such as the Internet and World Wide Web (collectively the “Rights”). Ghostwriter hereby irrevocably grants and assigns to the Client all Rights for the Work free from any restrictions and limitations.
(Editor’s Note: Ghostwriter may choose to add a provision to revert rights in the chance that the Client rejects the Work or for whatever reason chooses to not publish the Work. The period of time must be negotiated and written into the contract).
The Ghostwriter agrees to abide by the provisions of the Personal Information Protection of Electronic Documents Act and that any and all information provided by the Client (the “Information”) shall be kept strictly confidential. The Consultant agrees not to, at any time, or in any manner, either directly or indirectly, use any information for the Consultant’s own benefit, or divulge, disclose, or communicate in any manner any information to any third party without the prior written consent of the Client. The confidentiality provisions of this Agreement shall remain in full force and effect after the termination of this Agreement.
Client agrees to hold Ghostwriter harmless for any such damages that may arise from Ghostwriter’s work product. In no event shall Ghostwriter be liable for any direct, indirect, punitive, incidental, special consequential damages whatsoever arising out of or connected with the use or misuse of her work product. Ghostwriter assumes no responsibility for any special, incidental, indirect, or consequential damages of any kind, or any damages whatsoever (including without limitation, those resulting from her work product or from:
(1) user or Client reliance on the materials or documents produced
(2) costs of replacement writings, training, or documents
(3) loss of use, data, or profits
(4) delays or business interruptions,
(5) and any theory of liability, arising out of or in connection with the use or performance of Ghostwriter’s work whether or not Ghostwriter has been advised of the possibility of such damages.
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
SOLE AGREEMENT; AMENDMENTS.
The agreement contained in this Contract constitutes the sole agreement between the Ghostwriter and the Client regarding the project outlined above. Any additional work not specified in this contract requires a separate agreement.
This contract will be governed by and construed in accordance with the laws of the State of Governing Law, without giving effect to its choice of law rules.
ENTIRE AGREEMENT; AMENDMENTS.
This Agreement constitutes the entire understanding of the parties. Any changes or modifications thereto must be in writing and signed by both parties.
I, Client Representative Name, assert that I am a person employed by Client Name, and that I have the authority to promise payment for the services rendered by Ghostwriter for the aforementioned Work.
I assert that I have read, understood and agree to the terms of this Work-for-Hire Freelance Writing Agreement. I, Ghostwriter Name assert that I have read, understood and agree to the terms of this Work-for-Hire Writing Agreement.