Work-For-Hire Breakdown: The Good, the Bad, and the Ugly

Work for hire is one of the most controversial terms in the creative industries, and for good reason: it means that you retain no rights to your work. Instead, someone else owns every right to it, leaving you without even the right of termination. For example, one of my favorite artists, Tim Burton, first created Jack Skellington, the main character in his masterful The Nightmare Before Christmas, as a work for hire. Because Mr. Burton retained no rights to his work, he had to pay for the license to use his creation: Disney rented him the character he created.

In work-for-hire, an independent contractor artist transfers (and, as a backup, typically also assigns) full rights for their work. Work-for-hire must be made clear in the contract. The effect is similar to works made as an employee within the scope of their employment: in either a case, the artist who created the work is left with no rights to their work. A good copyright attorney can let you know if there’s any wiggle room, like work done arguably outside of the scope of employment or some errant wording in a work-for-hire contract, but otherwise, these contracts will prevent an artist from claiming any rights to their work.

Did Tim Burton get a bad deal? Unfortunately, that’s a bit of a subjective call that has to do with the potential value of the work of art (a difficult thing to do at the time of creation) and the amount of compensation offered. This difficulty in appraising the value of a work of intellectual property at its time of creation is precisely why a right of termination was created to allow artists in certain circumstances to force a renegotiation, and it is a right that is bargained away under work-for-hire.

For those who would take a one-time payout for all future rights in a work-for-hire scenario, remember that this is for everything, including things that you may not have even thought of happening years down the line.

Take the case of Ed Brubaker: his run on Captain America created the source material for the Winter Soldier character that is currently playing a critical role in several movies within the multi-billion dollar Marvel Cinematic Universe. Because the Winter Soldier was an essential part of the Marvel universe, of course it was a work for hire: outside of work within the scope of employment this is the industry standard at the top of the comic book industry, and anyone who writes for the big boys, i.e. handling Marvel or DC’s most profitable properties, knows that they’re not keeping the rights (unless their work for hire contract is poorly drafted). Not surprising considering how the central properties will ultimately go through dozens of writers, illustrators, directors, producers, etc.

Although Brubaker was not the writer who created Bucky, he brought him back into the comics by writing him in as the Winter Soldier, a critical re-interpretation of the character unique to Brubaker’s work. In a sentiment that I have heard many writers echo, however, he admitted he was playing with another kid’s toys and had to give them all back at the end of the day. Afterall, Bucky wasn’t his original creation, and another artist could have resurrected him with some other tragic backstory to explain his long absence. Additionally, the MCU could have used any one of dozens of other Captain America nemeses to fill the role that Bucky currently performs if Brubaker did retain some rights that they didn’t want to negotiate for, and Captain America had several enemies that would arguably become heroes or antiheroes.

The Winter Soldier, a popular cosplay, is one of Marvel’s most valuable pieces of intellectual property

So there you have it: the heart of the matter with work for hire is that you may be signing away on a chunk of the next MCU.

In all likelihood, however, you probably aren’t, and if you did keep some rights in a property, it would likely make it less attractive to a prospective major buyer because you would be one more person that they would have to negotiate with. In fact, under previous copyright law that required a renewal application to keep the copyright, the vast majority of copyrights were not renewed, suggesting what most would probably guess: in the long term, most of our doodles aren’t worth enough to spend time and money on decades down the road. Also, you’ve got bills to pay, and work-for-hire jobs typically pay a bit more in exchange for buying so many of your rights.

Honestly, there is no right or wrong on work for hire; it all depends on where you’re at in your career, your bank account, and your bills. Maybe this work-for-hire will get your name on the cover of a respected publication or label, and you can leverage that into a successful career, either with a big publication through work-for-hire or employment contracts or on your own independent label that you can bring your fanbase to after establishing your career with Marvel or DC. Just remember, in either case, your rights to your work are not worthless and must be considered in whatever bargain you strike.

Additionally, perhaps you are an artist but need a bit of help with one aspect of a character’s design or other artistic whatever. In that case, it may be the big labels that can help you put together your team to really make your contribution part of an amazing work you wouldn’t have been able to put together otherwise.

Before signing a work-for-hire contract, however, it makes sense to remember stories like Ed Brubaker and think twice on whether there could be valuable derivatives down the line. Brubaker certainly got a lot of momentum off of his work at Marvel and is one of the most recognized comic artists in the game because of it, but perhaps questions his decision not to at least negotiate a long-term royalty on Bucky every time someone in Winter Soldier cosplay, overjoyed that their favorite writer is in the building, comes over to take a selfie with him at ComiCon.