This is a modified excerpt from a book I’m working on called Independent Comic Book Publishing. It’s designed to walk you through the basics of work for hire agreements. The post is geared towards comic book creators, but the information is also applicable to freelance creatives and independent entertainers of all types. While this can’t be used as legal advice, I hope you’ll find it helpful.
Freelance comic book creators are the lifeblood of the industry. While publishers are celebrated for the intellectual property they own, it’s the work for hire creators developing many of the characters, stories and milestone moments in comics. Creator owned books are rising in prominence, but many of them rely heavily on work for hire talent to turn their dreams into reality. A few independent publishers try to handle all aspects of the business and creative process of comic book publishing, but most do not have the skill or the time to go it alone (See You Need Two Teams to Publish a Comic). But for all their importance to the craft of comics, work for hire agreements don’t get the attention that matches their impact. When comics are made without a detailed work for hire contract, the publisher risks losing ownership of their intellectual property and freelance artists risk losing the revenue they are entitled to.
What Is the Work for Hire Doctrine?
One of the basic concepts in copyright law is the relationship between creation and ownership. In most situations, whoever creates an original work owns that work. The work for hire doctrine is an exception to that rule. “If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.”
Under copyright law, a work for hire is created if it is “prepared by an employee within the scope of their employment or a work is specially ordered or commissioned for use” in a variety of situations. One of those situations is “as a contribution to a collective work”. Since comics are by definition a collective work, publishers regularly commission work for hire artists using work for hire agreements.
What Is the Benefit of a Work for Hire Agreement?
While there is plenty of hostility against work for hire agreements, there are benefits to both the publisher and the work for hire artist in the context of comic books. For the work for hire artist, there is a short-term financial gain. Many comics do not generate a profit, so artists relying on comic book sales to make a living might not be able to sustain themselves. Even if comic sales across the board were healthy enough for artists to survive, the profits for comics don’t materialize for months, sometimes years after the work is done and the book is published. Under a standard work for hire agreement, the artist is paid up front, regardless of the sales or profits of the published book.
For publishers, there is long-term profit potential. Published books are a source of revenue, but in the modern entertainment landscape, the intellectual property based on comics drives film, merchandise, television and video games (See Positioning Your Book for the Coming Content War). As an extreme example, the comic book industry as a whole generated two billion dollars in 2017. In 2018, Avengers: Infinity War generated a worldwide box office of more than two billion dollars, not counting merchandise or associated advertising.
Of course, even in the current age of comic entertainment, only a select few properties crossover into mainstream media. And almost none of the books that do find their way to various screens and shelves reach the heights of the current MCU, but copyright ownership gives publishers the potential for success. It is an investment with substantial risk that the work for hire artists don’t lose or profit from either way, depending on the agreement.
What is a Work for Hire Agreement?
A work for hire agreement defines the rights and responsibilities between an owner who commissions a work and the artist who creates that work. A work for hire agreement is different from an artist collaboration agreement (where two or more parties share in the ownership of intellectual property See A Simple Guide to the Artist Collaboration Agreement), or a license agreement (where one party gives another party the right to use some aspect of the intellectual property in exchange for payment).
Keep in mind that anyone working on the comic book who will not share in ownership of the intellectual property should sign a work for hire agreement. This includes freelance professionals on the business side of publishing like marketers or web designers who are not directly creating the comic book.
While a work for hire agreement will share some of the same foundation and housekeeping terms found in other comic book contracts (See my post on A Simple Guide to Creative Contracts), there are several basic and business terms unique to this type of agreement.
What are the Main Elements of a Work for Hire Agreement?
A well-drafted work for hire agreement will address the following issues:
1) The Owner of the Work
2) The Work for Hire Artist for the Work: Each artist performing work for hire services needs to sign a separate agreement with the Owner.
3) The Work explains what the Owner wants the Artist to do. This should be described in as much detail as possible, but at a minimum it should include.
a. The working title
b. A description of what the final product will be, whether it’s a web comic, single print issue, graphic novel or ongoing series
c. The Services the Work for Hire Artist is providing.
4) The Delivery Schedule: of when Artist will deliver the Services.
5) The Compensation: including page rates, hourly rates, royalties or any combination of the three. Compensation terms should also include:
a. The timing of payments
b. Credit in the final product
c. Ownership of the original artwork (if applicable)
d. Use of the Services in their professional portfolio
6) The Advance Recoupment: Any and all payments made to any party before revenue is generated and then deducted from the royalties when revenue is generated. For example, the artist might get a page rate for their work on the book before publication, but that money can get recouped by the Owner when the book goes on sale.
7) Missed Deadlines: any penalties to the Artist for missing the Delivery Schedule.
8) The Withdrawal: any penalties if the Artist is unwilling or unable to complete the Work
Drafting, negotiating, and signing the contracts for your creative project might take some time and cost you some money, but if you sign the right contracts up front, you'll save money in the long-term and put both you and your book in a better position to succeed.
If you’re a comic book creator or freelance artist who has had artist collaboration agreement issues in the past, feel free to share them in the comments below and tell us how you dealt with the problem.
Have fun with your comic.
If you have questions about the business or legal aspects of your comic book publishing and you'd like a free consultation, please contact me and we can set something up that fits in with your schedule.
PLEASE NOTE: THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. IF YOU HAVE AN ISSUE WITH YOUR COMIC PROPERTY, DISCUSS IT WITH A QUALIFIED CONTRACT ATTORNEY OR CONTACT C3 FOR A FREE CONSULTATION.