Work for Hire

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My apologies for posting so late today!   I’m here with another reprint from my Agent Anonymous articles from SFWA, this one on Work for Hire.  I promise something new next month, but for today…I’ve been working at half-mast since news that Rob Thurman, one of my amazing authors, is in critical condition, and this was about all I could manage.  Good thoughts and prayers for her recovery would be much appreciated.

Work for hire

I’ve set down to write my latest Agent Anonymous article on a train out of New York City to see my cousin and her new baby (the first of this new generation and a source of great excitement for us all).  Unfortunately, someone in my compartment has apparently just opened up a package containing a very—let’s call it aromatic—cheese.  The kind no jury of your peers would convict you for lobbing out the nearest window.  But here I’m getting off topic before I’ve even begun.

In my Bulletin article on contract negotiation (“De-Mystifying the Mystical Art of Negotiation,” April-May 2009) I breezed past the topic of work-for-hire agreements.  Apparently, the universe has now seen fit to punish me with stinky cheese.  Work-for-hire means, simply, that in return for whatever remuneration or benefits are agreed to, the person contracting your services owns the fruits of your labor under the terms of the agreement.  In publishing terms, whoever you’re writing for or with will own the copyright and all other rights to the material, characters, world, and everything spun off or tied into it.

There are two primary reasons such agreements are entered into:

1)      The material being developed into a novel/story/screenplay/whathaveyou is proprietary.  In other words, it might be based on a licensed property like Star Wars, Star Trek, Warcraft, etc. or on an outline/idea developed in-house at a publishing company.  The latter, where a concept is developed internally at an imprint, is becoming increasingly common, especially in the mystery and young adult fields.  There are also, of course, packagers, like Alloy Entertainment (for example with Gossip Girls) and Parachute Press (ex: the R.L. Stine Goosebumps books) that develop ideas they sell to publishers, resulting in work-for-hire arrangements with the selected authors.

2)      The material being developed is particular to someone’s life story or experience.  For example, celebrities or specialists within a particular field who don’t have the time or affinity for putting words to page might hire a writer (credited or not) to do the actual writing or to flesh out and polish a draft they’ve written themselves.  Because the information and platform are totally dependent on the content provider in this case, the most likely result would be a work-for-hire arrangement where he/she controls approval and disposition of the material.

Note that in both these cases, there’s a reason for the party of the first part to control copyright.  I’m not advocating that an author EVER give up copyright to his or her own original material.  This should, in fact, send up all kinds of red flags.  However, you shouldn’t expect to play in someone else’s sandbox and be allowed to take it home with you.  Now, that said, there are a lot of things you should expect in a work-for-hire agreement, whether you enter into it for love or money.

Credit

Unless you’re being made an offer you can’t refuse to ghost-write a work (actual amount inspiring impossible refusal to be determined by you and your duly authorized representative), you should expect to receive credit for your work and to be able to remove your name from the work if you no longer want to be associated with it after the Licensor or Content Provider has made changes.  (Remember, they maintain ultimate creative control in a work-for-hire situation.)  If you have gone the ghost-writer route, it’s a good idea to be sure that your work on the project can be listed on your writer’s resume for use within the business, even if you’re not credited on the book itself or materials associated with it.  My advice is to always seek credit for your work.  Otherwise, the only benefit you get is whatever financial arrangement you make.  Without credit, you’re doing a job rather than building a career.  There might be good reasons for going forward, particularly financial, but it’s something to consider carefully.

Advance

Make sure the advance is worth your while and a fair remuneration for the work that will be involved.  Advances will vary, as they do with original works, and many factors will affect the amount offered.  For example, for a licensed property, the amount the publisher has available to pay the author depends on the deal they’ve made with the studio or other rights holder and how much they have left over (based on how they expect the tie-ins to sell).  Obviously, the more they’ve had to promise the Licensor in terms of advance and royalties, the less they’ll be able to offer a prospective author.  Advances, whether for licensed properties, collaborations or ghost-writing gigs, might go up for rush jobs or down for jobs in which much of the material is provided to the writer.  An author might be paid more if he/she is generating a series outline/bible in addition to writing the novel(s) than if a detailed outline is supplied.  The more work you’ll have to do and the shorter the time in which you have to do it, the more you should be paid.  (Also, per the above, the less credit you get, the more enticing the financial arrangements should be.)

As with any publishing contract, the when of the payments (aka pay-out schedule) is as important as the total advance.  Some money will/should be due on signing.  Some will likely be payable on delivery of progress material, whether that be a detailed outline or a synopsis and sample chapters with the balance due on acceptance of the completed work.  Actual arrangements may vary.  It’s always a good idea to specify how quickly the person or company contracting you will be obligate to respond and make payments.

Royalties

You should definitely push for a continued stake in the property via royalties.  There might be some situations in which this is less feasible—for example if you’re contracted for a non-fiction work someone wants developed as part of a business package rather than for individual commercial sale.  However, since I’m writing this for the Science Fiction and Fantasy Writers of America, I’m going to assume that when talking work-for-hire, I should focus on fiction, in which case we’re discussing commercial use and profit that can be specifically accounted to the work.  As with credit, the lower the backend profits, the higher you’ll want the front end.

Subsidiary rights income

If a book/novella/whathaveyou is licensed, the author should receive a share of subsidiary rights income (translation, sales, audio, book club, etc.) based on the work.  (But not, of course, on any other tie-ins or merchandising based on the original source material.)

Kill fee

A work-for-hire agreement should also specify what will happen in the event that the publisher decides not to publish the work because it’s found to be unsatisfactory or for any other reason.  In some cases, if a publisher decides not to go forward “for any other reason,” an agent will negotiate for what’s called a “kill fee,” a monetary settlement to cover any expected income (as from royalties and subsidiary rights) which will be lost because of the lack of publication.  Often, it’s a matter of the author being allowed to keep payments made to date or the publisher being obligated to pay the entire advance covered under the agreement.  If, however, the manuscript or any of the delivered materials are found to be unacceptable, there should be language allowing the author a chance to rectify that situation.  If the revised material is still deemed unacceptable, it’s likely there will be a provision that the author may keep a portion of the agreed upon advance and that the publisher can then use or not use the material as they see fit.  It’s important to have it spelled out in such a clause that if the publisher uses the manuscript material in substantially the same form as delivered, the author is due the full guarantee under the terms of the agreement.

Deadlines and word count

Just as with all publishing contracts, deadlines and word counts will be delineated, which must be adhered to or changed by mutual agreement of all parties.

Copies

Yes, you should receive copies of the finished work and the contract should specify how many and where they should be sent.

Author as independent contractor

Work-for-hire arrangements will clearly state the nature of the relationship (or, specifically, lack thereof) between the parties, so it’s clear that the Author doesn’t represent the publisher, nor does the publisher employ the Author in the legal sense that it’s responsible for benefits, withholding taxes, insurance, etc.

While work-for-hire agreements are often more standard and less negotiable than contracts for original work, it’s still a good idea to have a contract specialist of some sort (an agent, contracts consultant or literary properties attorney) vet the agreements before you sign to avoid problems down the road, which so often has unforeseen twists and turns.

 

Whew!  Stinky-cheese passenger has finished his/her meal, and I have finished my article.  Hopefully, both were satisfactory.

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